Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:

Forensic commission can't address 'forensic hypnosis'
First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.

Maybe they'll listen if they Rangers tell 'em
Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.

Did TDCJ understaffing allow rape of prison teacher?
A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.

Coverup at TDCJ?
The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.

Executing non-killers
Something about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.

Paying for public defenders would reduce incarceration costs

Long-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public defenders reduce[s] the probability of any prison sentence by 22%, as well as the length of prison by 10%."

When your 'tiny house' means a tiny privacy footprint
Here's an unintended consequence to the "tiny house" movement: If your tiny house is on a trailer, your Fourth Amendment rights are likely diminished and the automobile exception will apply to searches of your residence, according to academic from Texas State.

Life without plea bargaining?
For the reading pile: India's court system doesn't do plea bargains. They've tried to implement them in the last decade and it's been a flop. I want to read this new academic article to learn more about the situation.

Unanswered questions about law-of-parties beyond death penalty

In our podcast the other day, Texas Defender Service Executive Director Amanda Marzullo estimated that 10 percent of death-row defendants were convicted under the law of parties, and discussed the absence of data about how often the law-of-parties doctrine is used in cases involving lesser punishments.

Besides the implications for lower level offenses, which Mandy ably discussed in the podcast, that estimate/observation raises another question to which she did not immediately have an answer: What is the proportion of law-of-parties cases among defendants accused of capital crimes who ended up sentenced, usually via plea bargain, to life without parole (LWOP)?

Grits has never been a fan of Texas' LWOP statute, having believed from the beginning that life with the possibility of parole after 40 years should have still been a possibility. (Most capital defendants are REALLY young.) But if it turns out that law-of-parties convictions happen at a higher rate than among death sentences, it could indicate weak cases are being overcharged and pled.

Certainly we also need to know more about the extent of law-of-parties convictions in non-capital cases - this is a serious shortcoming in the available data, which Mandy says can't be shown without reading trial transcripts. That means it can't be shown at all from the public record when there's a plea deal!

Law-of-parties convictions inherently deserve extra scrutiny, and not just in the capital context. After all, these are cases where defendant's direct culpability could not be proven but the punishment is the same as those for whom culpability is unquestionable.

This is an area which would benefit from an interim study by a legislative committee or advocacy group. But it's a big task. If law of parties cases are resulting in significant numbers of people being convicted who would not be if prosecutors had to prove all the elements of the crime they're accused of, that could be a large enough issue to affect population levels in the medium to long term. So there are reasons to reconsider these questions related to both equity and economy.

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.

'Worst of the worst'? House will consider 'law of parties' in capital cases

Should the death penalty be applied only to the worst of the worst, or also to those who associate with them?

That's a question the Texas House will answer today when they take up and consider legislation to eliminate the death penalty for accomplices who didn't kill anyone based on the "law of parties." The issue rose in prominence last year when Governor Rick Perry commuted Kenneth Foster's death sentence under the law of parties and called on the Legislature to reconsider the issue of whether accomplices in capital murder cases should receive separate trials.

The bill up today would require an accomplice in a capital murder case to stand trial separately from the actual killer and eliminate the death penalty for people who didn't personally murder anyone. As Scott Cobb described HB 2267 by Hodge on Burnt Orange Report:

HB 2267 would require separate trials for co-defendants in capital trials in which the death penalty is sought and would prohibit the state from seeking the death penalty for people who do not kill anyone but are convicted under the Law of Parties. It is fundamentally unfair to sentence someone to death, like Kenneth Foster was, if they did not kill anyone. The death penalty is intended to be reserved for the worst of the worst killers. People who do not themselves kill anyone are not only not the worst of the worst, they are not even killers.
The Law of Parties allows people who "should have anticipated" a murder to receive the death penalty for the actions of another person who killed someone. A person sentenced to death under the Law of Parties has not killed anyone. They are accomplices or co-conspirators of one felony, such as robbery, during which another person killed someone. However, in some cases a person can end up on death row under the law of parties even though they did not even know their co-defendant had any intention to hurt or even rob the victim, which is what happened to Kenneth Foster. A person who did not kill anyone, or intend anyone to be killed, should not be executed for the actions of another person.

Non-killers convicted of capital murder under the law of parties could still receive life without parole, as I read the bill, but the death penalty would be off the table. See a good discussion of the legislation and its pros an cons from the House Research Organization.
Relatedly, see also an open letter I wrote last year to the Governor and the parole board regarding Kenneth Foster and the law of parties, which declared in part that, "Increasingly I've come to believe that, if the death penalty is ever abolished, at least in this state, it will not be because its opponents succeed politically but as a backlash to its overzealous implementation." In that sense, arguably, this legislation does more to preserve the death penalty than to limit it. I hope they approve it.

New York Times focuses on "law of parties" that leads to frequent unjust outcomes at the ignominious Texas Court of Criminal Appeals

Evan Smith from Texas Monthly forwarded me a link to this NY Times article, which Doc Berman also points to, about a Florida man convicted of murder under the "law of parties" for providing a car for a burglary that ended in homicide. Smith asked if this wasn't similar to a recent high-profile Texas case?

I think he's referring to Kenneth Foster, the driver of a vehicle used in a getaway after a murder whose execution sentence Governor Perry recently commuted to life. (In all honesty, given the state of Texas' prisons, I'm not sure LWOP is a better deal.) But the same situation also explains quite a few of the "murderers" who got probation in the big Dallas News series on "probation for murder." The "law of parties" as practiced has been expansively broadened at the ignominious Texas Court of Criminal Appeals under Presiding Judge Sharon Keller and Co.. By contrast:

India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”

That approach, to me, seems more just.Here's another great example why Democrats need some horses, er ... candidates, to step up and run for the Texas Court of Criminal Appeals, not just for Democrats to appear competitive in every seat, a laudable but not necessarily strategic goal, but just in case Democrats get lucky and experience a Dallas-style Democratic sweep because of national electoral trends. If that happens, failure to field candidates in these three statewide seats will appear, in retrospect, like leaving money on the table. If there's a chance to improve this egregious court in the least and Texans don't take it, it would be a tremendous waste.

There's only a short time left to get the necessary signatures from around the state, although I'll bet some of our friends in the netroots could help accomplish that quicker than might otherwise be possible. So if you're planning to throw your hat in the ring, shoot me an email to let me know and I'll help you tap into several other folks who are desperately looking for horses ... er, candidates, to run for these three seats.