When prosecutors have too much time on their hands, and other stories

Here are a few odds and ends of which Grits readers should be aware, even if your correspondent hasn't had time to focus as much as one might like on the blog in recent weeks:

Too many prosecutors with time on their hands
Travis County keeps old misdemeanor arrest warrants on the books that are 30 years old or more. For what possible purpose, one wonders? The story arises because, with the number of hot-check cases rapidly declining, prosecutors in the hot-check division don't have anything better to do and have begun to try to collect on these old cases. Maybe the County Attorney should just reduce staffing in that division commensurate with the decline in caseload instead of sending them on fishing expeditions for old unpaid tickets. Just a thought.

Quis Custodiet Ipsos Custodes
A police officer in Dallas has been indicted for an on-duty shooting for the first time in 43 years. But an indictment is one thing, conviction another. In Fort Worth, charges were dismissed against a cop who shot a man holding a barbecue fork after the original charges resulted in a mistrial. The state trooper indicted for perjury after Sandra Bland's arrest and death in the Waller County Jail, but charges were dropped this week. Not only is it difficult to prosecute bad cops, it can be damn hard to fire them: In San Antonio, a once-before-fired officer who'd been returned to the force by an arbitrator, was once again given his job back through arbitration after he'd fled the scene of a crime where his gun was used to shoot someone and a bag of cocaine was found in his truck. He failed to report his involvement to his supervisors and misled investigators at the scene, but was let back on the force. About the only way Texas cops are ever successfully prosecuted is if the feds do it, like with this guy.

Bill death doesn't halt bail reform
Texas legislation to require courts to use risk assessments when setting  bail amounts died this year as an industry which has in essence captured its regulators demonstrably exercised control over the legislative process. But arguments against the practice aren't going away and neither is the bail litigation in Harris County, which looks like it could end up at the US Supreme Court before all is done. As evidenced in the next item, Texas' hasn't fared well there, recently, fwiw.

Texas cases defined SCOTUS capital punishment debate this year
Commentators from the left and right all agree that Texas cases - especially ones where the Court of Criminal Appeals has embarrassed the state over reactionary, reflexively pro-government rulings that fly in the face of reason and common sense - are more or less defining the terms of debate over the death penalty these days at the US Supreme Court.

Forensic (not-quite) Science Update
How much science is in forensic science? Less than you think. But the tuff-on-crime crowd clings to unscientific (or more accurately, pre-scientific) reliance on longstanding forensic practices with higher-than-zero false positive rates, many of which have been portrayed as all but foolproof in courtrooms across America. This podcast gives a good overview of recent federal developments and their implications.

Holiday Reading
Here are a couple of academic articles  Grits has downloaded and intends to read over the July 4th holiday:

• A Holistic Framework to Aid Responsible Plea Bargaining by Prosecutors
• Public Trust and Police Deception

Prosecutors see hot-check accounts declining as check writing becomes passé

County Attorneys' hot-check fund accounts have ebbed as “Check writing is becoming a thing of the past,” reported the Odessa American on Sunday, magnifying a trend the paper had first documented three years ago.

County attorneys have prosecuted hot-check issuers for more than 40 years in Texas, but fewer checks being written may spell the end of the hot check fund.

With the Ector County hot check fund sitting at about $44,000, down from a high of more than $250,000 five years ago, County Attorney Scott Layh said it won’t be long before the fund will not be sustainable.

Reduced use of written checks combined with the trend away from using hot-check prosecutions to subsidize payday lenders has caused these once-lucrative revenue sources to dwindle. It'd be interested to see county-by-county data on these accounts.

Advisory warns against using prosecutors as debt collectors for payday lenders

The Texas District and County Attorneys Association website has posted a notice to prosecutors about using their hot check divisions as a stalking horse for abusive payday lending practices. It reads:

We have been asked by State Rep. Mike Villarreal (D-San Antonio), chairman of the House Committee on Investments and Financial Services, to notify prosecutors of a recent advisory bulletin issued by the Office of the Consumer Credit Commissioner (OCCC) regarding payday lending.  Specifically, the agency is warning payday lenders against using a prosecutor’s hot-check division “simply as a means for collecting on delinquent loans,” especially those secured by post-dated checks from the consumer/borrower.  These lenders’ (alleged mis-)use of the criminal justice system was highlighted in an expose earlier this summer that should serve as a warning to unsuspecting hot-check divisions.  Fortunately, you now have a statement from the state agency regulating these businesses that will back you up if you decline to pursue charges.

The expose mentioned was a story in the Texas Observer by Forrest Wilder* contending that District and County Attorneys offices are "functioning as a debt-collection service for payday lenders." Bexar County ADA Cliff Herberg "said his office won’t prosecute cases in which a payday loan is involved unless there’s a clear case of fraud or deception. 'If it’s for a loan, they’re not going to submit them to a criminal prosecution, it would be for collections purposes only.' However, the collections letters from the Bexar County DA threaten arrest, jail and criminal prosecution." So Mr. Herberg is splitting that particular hair might thin.

Like asset forfeiture, hot check collection produces a slush fund that elected prosecutors can use however they want. According to a TDCAA primer on the subject from 2008, "The statute gives the elected prosecutor sole discretion over expenditures from the hot check fund; the elected is not required to get approval from the commissioners court to use the funds." So there's a tacit economic incentive for prosecutors to look the other way when payday lenders attempt to use them for purposes of debt collection. It helps them grow their slush fund.

Over time, prosecutors have successfully lobbied to use hot-check funds for just about anything (except supplementing the pay of elected prosecutors themselves). "Originally, the legislature envisioned the money would be used to defray the costs directly attributable to the prosecution of hot check writers, but the spending guidelines have expanded over the years," according to the TDCAA primer. Further, TDCAA emphasizes that, "if a defendant has written several hot checks, there is nothing to prohibit you from collecting a fee on each check." So in aggregate, hot check fees can rack up pretty quickly.

Last month, Wilder reported on the new advisory from the Consumer Credit Commission which warned that payday lenders "should not use a district attorney's hot-check division simply as a means for collecting on delinquent loans." The new advisory clarifies that, "if a consumer postdates a check to pay for a payday loan, and that check later bounces, this is not sufficient evidence to show that the consumer committed criminal conduct." Instead, there must be additional evidence proving the consumers' intent to commit a crime. (Such intent is presumed for hot checks dated the same day as the transaction.)

Grits has long believed the law should be changed so that these slush funds - both for hot checks and asset forfeiture - go to counties' general funds instead of remaining under control of elected prosecutors. That would remove even the appearance self serving incentives regarding how those cases are handled, which presently is hard to avoid. Short of that, I'm glad the Consumer Credit Commissioner issued this advisory, but it remains to be seen whether their advice changes front-line behavior of the prosecutors and justices of the peace who handle the bulk of these cases.

*Kudos to Wilder, btw, for his excellent reporting on this topic. Great job, amigo, I'm proud of you.

Shift away from checking reduced hot-check fund revenues in Odessa

Here's an unexpected consequence of the shift away from checks to plastic in recent years - less money in county Hot Check Funds, which are slush funds controlled by County Attorneys generated by an escalating array of fees on hot checks. Reported KOSA out of Odessa:

The Ector County Attorney's office is passionate about going after hot check offenders, but over the past two and a half years that Hot Check fund has depleted from $305,667 at the beginning of 2009 to just $108,709 as of May 31, 2011.

County Attorney Cindy Weir-Nutter explains they're working hard to go after hot check offenders, but with a decrease in businesses accepting checks, there are fewer to recover.
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"It's just common sense that checks are a thing of the past and so the fund is going to go down."

An election opponent agrees the shift away from checks is the main driver for the lower fund balance, though she also accuses the incumbent Ector County Attorney of unnecessary spending on office furniture. An even bigger factor, though, may be that lower-income families, who are most likely to bounce checks, have been closing their bank accounts in droves in part because of higher bank fees and minimum balances as well as, naturally, "overdraft" fees. So if fewer poor people have bank accounts and fewer businesses are accepting checks, it's a reasonable bet that County Attorneys' hot-check fund balances will continue to decline and I wouldn't be surprised to learn that the same thing happening in other counties as well.