Prosecutor-turned-TV-star cultivated ring of informants to give false testimony in cold cases, federal judge declares

Imagine prosecutors cultivating a "ring" of jailhouse snitches to give false testimony in cases where there otherwise was insufficient evidence to convict the defendant. Well guess what? You don't have to imagine.

A recent Houston Chronicle article by Julian Gill described remarkable allegations against former Harris County prosecutor turned TV star Kelly Siegler, with a federal district judge claiming that she concealed information about the recruitment of an informant from federal prison on Beaumont to convict Jeffrey Prible of capital murder in 2002. Judge Keith Ellison ordered a new trial for Prible, declaring he must be released in six months if the DA doesn't re-try him.

But reading the judge's 88-page order, the details are even more startling. The judge described a "ring of informants" in the federal prison - at least five or six, maybe as many as ten - who would essentially testify to whatever prosecutors needed them to say.

The leaders of this "ring" first tried to convince another man, Carl Walker, to testify against Prible before Mike Beckom agreed to do it.  Walker said the ring's leaders were “'always on the phone' with Siegler,” one of them “almost on a daily basis” regarding the case. Walker said the ringleaders “directed him to 'write a letter' to be sent to Siegler describing 'details about [Prible’s] case'” that the others had fed to him. Walker claimed that  “'common sense' told him that 'someone high on the food chain was feeding these guys the information because [Prible] wasn’t telling' Walker facts about the crime. '[T]he whole plot was made out before it was actually executed.'” 

"To Walker’s knowledge, however, Prible never actually confessed." Indeed, "Walker did not think that Prible had committed the murders."  "Overall," the judge observed, "Walker described a ring of 'five or six' informants who were trying to incriminate inmates like Prible."

That same ring, Walker explained, was “simultaneously involved in setting up another inmate, Hermilo Herrero, for another cold case murder. According to Walker, 'this is how you have [the] miraculous coincidence that the same group of guys . . . have been confessed to by two different people on two different murders, totally different murders.'”

Walker “said he came to a 'moral . . . crossroad' when he asked himself: '[Am I] going to openly lie about information I had no idea about and send this man to his death?' He added: 'I just know these guys is guilty of conspiring against him and working to recruit me and others or whomever that would listen to, actually, ah, get him on death row. I know that for a fact. I do know for a fact that Kelly Siegler was involved.'”

The informant who did testify, Mike Beckom, was recruited by his cellmate, Nathan Foreman. "Foreman testified that, after he became cellmates with Beckom in October 2001, they met Prible in the recreational yard.  By that point, however, Foreman already knew some facts about Prible’s case and had relayed them to Beckcom. Foreman had gotten his information from [another inmate, Jesse] Moreno and Siegler."

Siegler said she would not have relied on Foreman because she considered him a "liar." But she "conceded, however, that even though she similarly did not believe Foreman in Herrero’s case and accordingly did not use his testimony at trial, she nonetheless wrote a Rule 35 letter for him."

Beckom testified against Prible because he thought it would get him out of prison. Wrote Judge Ellison:

From the beginning, Beckcom testified that Siegler led him to believe that he would “get walked out . . . for [his] testimony” against Prible. Siegler told Beckcom, “[t]his probably will get you out of prison.” Beckcom thought that Siegler told him that she had talked to the federal prosecutors about his own case and they would “play ball.” He said that he had no other reason to develop evidence against Prible other than to receive a Rule 35 letter for a sentence reduction. Beckcom “knew [Siegler] had lied” because he only received one year off of his sentence for his testimony. 

The Court of Criminal Appeals said Prible had sufficient information to have claimed the informant conspiracy earlier. But, Judge Ellison concluded, "Although Prible may have suspected prosecutorial misconduct, including Brady violations, during the course of state court proceedings, Siegler’s efforts to suppress evidence of her contacts with Beckcom and the other informants left Prible with no concrete evidence to support such a claim during those proceedings, despite Prible and his counsel’s diligent efforts to discover such evidence."

To be sure, wrote Ellison:

In many ways, Beckcom was not a credible witness. From the Court’s review of the record and its observation of his live testimony, it is obvious that Beckcom was dishonest when it suited his needs. In other areas, however, Beckcom’s testimony corroborated other testimony and the timeline of events. While the Court finds that Beckcom was generally not a credible individual, certain areas of his testimony can be confirmed when compared to the record.

Kelly Siegler, it must be emphasized, denied any misconduct. But many of her answers to the most salient questions amounted to "I don't remember," while all the details that supported Prible's conviction she remembered vividly.

The judge noted that she'd received letters from several other people in the ring offering testimony against Prible but didn't follow up because she didn't believe them. "Curiously," wrote Ellison, "Siegler said that the letters were in the file open for Prible’s defense attorneys to read. This, of course, turned out to be untrue." Concluded Judge Ellison, "it is now undisputed that they were in her work product file and were not disclosed to defense counsel."

Further, Siegler "testified that she never saw Foreman after the August 2001 FDC meeting; yet, there is unrefuted evidence that she had a meeting with him in December 2001 at FCI Beaumont."

The only other evidence against Prible was DNA, but that wasn't enough to initially charge him because he freely admitted he'd been having an affair with the victim. Only the jailhouse snitch saying Prible confessed gave the state enough evidence to get a jury to convict. But even the DNA evidence was suspect. According to Judge Ellison, "The State did not disclose that it had developed evidence supporting the defense’s expert testimony on the DNA, but still presented testimony with directly opposite scientific conclusions."

Despite all this, Prible would normally be procedurally barred from making these claims because he did not include them in earlier habeas writs at the state level. But Ellison ruled that Siegler withholding critical evidence was sufficient to overcome that bar: After all, actions by the attorney representing the state itself was the reason Prible couldn't raise these claims before.

This was a remarkable ruling and the facts of the informant ring shopping testimony to prosecutors sounds like it came straight out of a movie. This isn't the first time Kelly Siegler has been accused of withholding evidence from defense counsel, but it may be the most sensational example.

Notes: Citations omitted from all quotes from the order. Also, Mr. Herrero's name was spelled two different ways in the judge's order. I looked him up in TDCJ's database and used the spelling corroborated there.

Blakinger scores big victory for hungry TDCJ inmates, visitation denied, why people convicted of unconstitutional statutes are innocent, and other stories

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

TDCJ to improve lockdown food

The Marshall Project's Keri Blakinger hit another home run recently with her story on what Texas prisoners are being fed during lockdown. It was sprinkled with stomach-churning contraband cell-phone pics from prisoners that corroborated years of allegations about how awful food could be when prison units are locked down. On Friday, she reported on Twitter that TDCJ has told inmate families they will begin providing raw vegetables, cartoned milk instead of powdered, and are considering how to source fruit, pizza and hot pockets. Good for TDCJ, even if it took being shamed to improve things. And thank God for Keri Blakinger!

Many prisoners denied visits, phone calls before the lockdowns

Prisoners' families have been upset during the COVID crisis that so many inmates were forbidden access to phones to call them. Recently, some on lockdown have been allowed 5 minute calls, but that's still not much. Michael Barajas at the Texas Observer reminds us that a significant portion of Texas inmates couldn't call their families and had been banned from visitation even before the coronavirus, but TDCJ doesn't track how many are banned or why. Great job, Michael! Grits readers may recall that, earlier this year, TDCJ made visitation and mail policies even more restrictive, punitive and arbitrary. It's great to see some journalistic light shed on the subject.

Texas women inmates cope with COVID

At the Waco Tribune Herald, reporter Brooke Crum provided a window into how women inmates in Gatesville and their families are coping with coronavirus restrictions.

COVID testing rates vary widely at county jails

There are wide disparities in how frequently county jails are testing inmates and staff for the COVID virus, reported the Dallas News. Harris County is testing more broadly; Dallas County, not so much. Travis County, by contrast, is testing far less frequently than either of them. The thinking appears to be that, if you do not test, you won't have to report that anyone is sick. As of yesterday, 1,314 Texas jail inmates and 234 jail staff had been reported as testing positive to the Texas Commission on Jail Standards. But because some jails are testing so few people, those numbers are surely an undercount.

Ex-prosecutor could be disciplined for withholding exculpatory evidence

Daniel Rizzo, a former Harris County prosecutor, faces an attorney discipline lawsuit for withholding exculpatory evidence in Alfred Dewayne Brown's murder case, Texas Lawyer reported. Rizzo claims he never saw the phone records which later led Mr. Brown to be declared actually innocent, though they were available in his files.

People convicted of unconstitutional online solicitation statute were actually innocent 

The Texas Supreme Court has ruled that people convicted of online solicitation of a minor after the statute was deemed unconstitutional by the Texas Court of Criminal Appeals  qualify for innocence compensation under Texas statutes. (The Legislature enacted a new online-solicitation statute in 2015, but not nearly as stringent as the original.) Grits has wondered for years about how innocence claims from these cases would be handled. Now we know.

Covering prosecutors in the media: A primer

Your correspondent was asked to speak tomorrow at an Investigative Reporters and Editors conference in Houston on the topic of covering prosecutors. I told them I'd focus on three areas: Available data on prosecutors (focused on Texas), innocence issues, and context for covering so-called "progressive prosecutors." Since I had to prepare, anyway, here are a few highlights:

Texas prosecutor data

For the most part, data on prosecutors is scarce. In Texas, the first concerted effort to dig beyond the surface came from a reporter (now an attorney) named Cindy Culp, writing at the Waco Tribune Herald, 2009. (The stories are no longer available free online, but here are some excerpts, and Grits' contemporary coverage of her work.) The police union had accused the local DA of dismissing too many felony cases, so Culp examined case-dismissal rates in 3 counties - McLennan, Wichita, and Jefferson. She found:

Local prosecutors either refused or dismissed 50.3 percent of felony charges during 2006-08. For misdemeanor cases, there was a 39.7 dismissal/refusal rate, and for all cases combined, it was 43 percent. 

By comparison, during the same three years: 

* Prosecutors in Jefferson County, home to Beaumont and Port Arthur, refused or dismissed 45.7 percent of felonies, 40.4 percent of misdemeanors and 42.2 percent of all cases combined. 

* Prosecutors in Wichita County, where Wichita Falls is the county seat, refused or dismissed 46.3 percent of cases with felonies and misdemeanors combined. Data were not available broken down by felony versus misdemeanor.

The main thing Culp's work showed, however, was how hard it is to acquire meaningful prosecutor data and analyze it in a way that's useful and informative. She showed us more than we'd seen before, but also made more glaring the stark absence of data regarding prosecutorial decisions.

No one else attempted to track this data in Texas until the Texas Criminal Justice Coalition created its Harris and Dallas County Data Dashboards: https://tcjcdashboard.org/

This resource lets case data be broken down by charge, by race, by census tract, and by arresting agency. Probably the two most interesting and/or newsworthy analyses will pertain to racial disparities, which can be broken down by type of crime and arresting agency, and dismissal rates. That takes these analyses several steps beyond the Culp's agency-wide analysis. But it's not available except for those two counties. And it's not clear it could be replicated everywhere through open records requests; both those counties have more robust data systems that could be scraped for these purposes.

Otherwise, in Texas what's readily available is Office of Court Administration Data:

• Annual Statistical Reports: http://www.txcourts.gov/statistics/annual-statistical-reports/
• Data Queries: http://www.txcourts.gov/statistics/court-activity-database/

The annual report gives statewide and county-level trends for new cases, overall caseloads, number of convictions/pleas/jury trials, and case clearance rates. The number of new cases and convictions both are often a useful datapoint to combine with other sources to make various calculations. Summary information at the front of the report may be useful, but more interesting are the data tables at the end.

Data queries allow MUCH more detailed breakdowns by county. In addition to county-level data on the datapoints from the Annual Statistical Report, you can get data on motions to revoke probation.

One of the best-kept secrets in the Texas judicial data can be found with a municipal and/or JP-court query. Select "Additional Activity" at the drop-down box under "Section." There you can find data on arrest and search warrants, Class C fines, how many fines are waived, how many were satisfied through community service, jail credit, etc. Prosecutors play a role in all of these decisions.

Another data-based story angle: just recently, Keri Blakinger of the Houston Chronicle published a landmark article on prosecutor caseloads at the Harris County DA, showing that District Attorney Kim Ogg had significantly overstated the prosecutor-to-cases ratio when pitching the commissioners court to let her hire 100 new prosecutors. Her open-records-based methodology would be interesting to replicate in large cities where caseloads may be an issue. For more background on the caseload issues, see this academic article, also focused on Harris County. To my knowledge, this caseload story has not been replicated elsewhere. If you're going to do this work in Texas, the Indigent Defense Commission keeps excellent, county-and-lawyer-level data on defense-attorney caseloads for comparison.

Data gaps: There are more parts of a prosecutors' job about which we don't have data than those we do. One of the most glaring data gaps regards plea bargaining and the "trial penalty" - i.e., how much more harshly defendants are penalized if they insist on the state proving their case at trial. Most datapoints that exist for prosecutors involve taking cases to trial, but overwhelmingly most cases (97+%) are resolved by plea bargaining. That process is a black hole with scarce little quantitative or qualitative information ever arising from it. But it's the most important (and common) thing prosecutors do.

Finally, Larry Krasner in Philadelphia and perhaps a few other new "progressive" DAs are beginning to generate more and different types of data. Although my presentation only discusses Texas datapoints, their example eventually may educate us about different analyses that DAs can do with their internal data that haven't typically been made public in the past. This is an aspect of the progressive DA movement that could have out-sized impact down the line, providing transparency to what has been an utterly opaque process.

Prosecutors and Innocence

My first bit of advice to this group when it comes to prosecutors and innocence:

Don't contribute to tunnel vision in high-profile cases: The cases that receive the most media attention paradoxically put the most pressure on prosecutors to cut corners to get convictions. In these instances, journalists play less a role of holding government accountable than government cheerleader, since the government (read: prosecutors) control all the evidence presented. That's both useful to understand after the fact when covering innocence cases, and a cautionary tale when covering cases on the front end. Sensationalized coverage of high-profile trials may not reach jurors, but it reaches voters and DAs react to it. (Watch Ava Duvernay's When They See Us on Netflix for an excellent example.) Given that we've seen so many such cases later overturned through DNA exonerations and other means,  the press has some soul searching to do when it comes to pandering to the public with salacious coverage and their role in generating false convictions.

Otherwise, when false convictions have already occurred, there are a handful of issues in innocence cases that fall directly on the shoulders of prosecutors. Here's what to look for:

Improper arguments: Prosecutors may say things at trial that can lead jurors to wrong conclusions: e.g., misstating the law, or relying on perjured testimony. These flaws likely will not be evident to reporters from the trial record (which is another reason to be cautious when covering trials up front), but typically will arise in appellate arguments down the line.

Failing to disclose exculpatory evidence: Brady v. Maryland is the federal case covering what prosecutors must disclose to the defense, but in Texas we passed the Michael Morton Act, which makes the requirements more stringent and requires disclosure earlier in the process. In Texas, prosecutors now must create a list of what was turned over and make it part of the record. This is an issue that will only come out in the appellate process; it's impossible to know at trial what evidence a prosecutor DIDN'T present. For an example of how to analyze appellate records to identify this type of prosecutor misconduct, see a study of California cases by the Veritas Institute.

Police records a gap in the system: Prosecutors cannot disclose records of police misconduct in Texas civil service cities governed by the state civil-service code: about 74 police departments out of nearly 2,000 statewide. That's because police-misconduct records in civil-service cities were made confidential by law in 1989, with departments forbidden even from sharing the information with other law enforcement agencies. (Of the large cities, only Dallas and El Paso aren't under the civil service system. Among sheriffs, only Harris County operates under this system.) In one case in San Antonio, a false conviction was overturned when police did not turn over video evidence of an officer assaulting a handcuffed defendant; instead, the defendant had pled guilty to assaulting the officer! So sometimes, Brady or Michael Morton Act violations may not be a prosecutor's fault, even if they're the ones with the legal obligation to turn it over.

The national exonerations registry is a great starting point for identifying innocence cases in your jurisdiction and for more examples of various types of prosecutor misconduct. Check it periodically for cases in your state that may have flown under the radar.

Setting expectations re: "progressive prosecutors"

Lately, we have seen prosecutors elected as "progressives" in America for the first time in nearly a century. But beware these labels. Podcast listeners heard a related discussion toward the end of our June episode.

Before Larry Krasner in Philadelphia, I considered the notion of a progressive prosecutor a myth. Krasner makes the best case for the possibility of a progressive prosecutor. Krasner's memo to prosecutors on charging and sentencing was a landmark moment, and self-styled progressive prosecutors should be judged based on how much of that agenda they're implementing in their jurisdiction. Most Texas prosecutors labeled "progressive," for example, aren't coming close.

But at the end of the day, I still don't believe in progressive prosecutors because the DA's function is fundamentally regressive. As I put it on the podcast, "A prosecutor has just one tool in the toolbox. They lash out with the power of the state to exact retribution on someone who violates its dicta." There is simply no "progressive" function involved in that activity. Their only power, and only leverage, comes from harming people in retaliation for ignoring state pronouncements. When that pronouncement is "don't murder" or "don't rape," the public broadly supports their function (at least until it came to light how often innocent people are convicted). But when that pronouncement is "Don't smoke pot," the prosecutorial function becomes more controversial.

My belief is that the #cjreform movement's focus on prosecutors has been overblown. They're important, but not the only decision makers in the system. And focusing exclusively only on them lets others - e.g., legislatures, police, judges, crappy defense attorneys - off the hook.

MORE: Here's a brief write-up of the panel.

Piney Woods DA ousted after accusation by neighboring DA, who was then given control of his neighbor's prosecution team

Here's an intriguing tidbit from East Texas. The Upshur County District Attorney's Office asked the Texas Rangers to investigate Wood County District Attorney Jim Wheeler, who abruptly resigned days later. A local TV station reported, sparsely, that an "administrative district judge" then named Upshur County DA Billy Byrd, the original complainant, "acting prosecutor" in Wood County.

I could find no more detail than that that online so far, but ... wowza!

To any journalist readers out that way, what gives? How do we not yet know details of such a juicy development? We need to learn more on this! That's a lot of drama, even for rural Texas, to have generated so little reporting.

MORE: A commenter suggested I should have read the appointment of the Upshur County DA as "acting prosecutor" to mean he was appointed to the case, not to run the Wood DA office. Maybe so.  I thought that would be a "special prosecutor," and think of "acting" as temporarily filling a vacancy. But the point remains: we need more reporting. Trying to interpret from the few sparse lines linked above is fruitless. Somebody needs to go report what the hell's going on! Sorry if I got that wrong, but not for drawing attention to this big, fat un-told story just sitting there two hours east of Dallas.

'Egregious' and common prosecutor misconduct not enough to overturn drug conviction

The U.S. Fifth Circuit Court of Appeals last week found that prosecutors engaged in "egregious" misconduct in a federal drug case out of Harlingen, but did not provide relief. "Two of [the defendant's] claims — the prosecution’s use of drug profiling evidence and bolstering of witnesses’ credibility — are errors that we have repeatedly warned the government about." The ruling concluded thusly:

Today’s outcome is the same as many of our prior decisions addressing drug profiling testimony and bolstering of witnesses: we find that the government engaged in misconduct but nonetheless conclude the defendant cannot meet the heavy burden of obtaining reversal for error he did not object to during trial. If the ultimate end of prosecution is securing convictions, it may not be surprising that this trend has not deterred these improper trial tactics. Of course, winning is not supposed to be a prosecutor’s lodestar. Striking “hard blows” but not “foul ones” in pursuit of justice is. Berger v. United States, 295 U.S. 78, 88 (1935). Fidelity to that higher calling would prevent us from seeing these errors yet again.

That's wishful thinking. As long as prosecutors have absolute immunity and the courts refuse to penalize their cases, even for repeated misconduct, you can bet your bottom dollar that fidelity to a higher calling will NOT "prevent us from seeing these errors yet again."

The Intercept: State DA association understates extent of prosecutor misconduct

A recent Texas House Criminal Jurisprudence Committee hearing covered that panel's fourth "interim charge" - essentially a study assignment the House Speaker gives committees in between Texas' once-every-two-years legislative sessions - related to both prosecutor misconduct and ineffective assistance of counsel (aka, defense misconduct).

Grits had analyzed the key debates from that hearing related to ineffective assistance. And now, my neighbor Jordan Smith has a report on the prosecutor-misconduct portion of that debate for The Intercept. Jordan explored in some depth, and ably refuted, the state prosecutor association's claims that legislators should interpret the low number of prosecutors sanctioned for misconduct as evidence that prosecutorial misconduct doesn't (or barely) exists.

Between those two reports, one can get a decent sense of the terms of debate presented to the Criminal Jurisprudence Committee surrounding that interim charge.

Stop the Train! An Epic Indigent Defense Fail in Travis County, execution scheduled without hearing on snitch recantation, new music from Just Liberty's decarceration campaign, and other stories

Here's the latest episode of the Reasonably Suspicious podcast for April 2018. You can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


In this episode, we discussed:

Top Stories

• Travis County indigent defense system producing terrible outcomes. 
• Texas Supreme Court to consider whether prosecutors can be fired for refusing to break the law. 
• Listen to Just Liberty's new anti-incarceration/prison-closure jingle!  (~9:00 mark.)

Death and Texas

• Juan Castillo may be executed next month but courts haven't considered informant recantation. 

Fill in the Blank

• Litigation in Galveston County made national press after a judge refused to pay for defense-attorney investigation in misdemeanor case. 
• Two Tarrant County cases show how politicized elections-based criminal prosecutions can be. 
• Former Congressman Sylvestre Reyes authored a clueless column on Texas and the opiod crisis.

The Last Hurrah

• Houston limits zoning for offender services. 
• The Tyler Court of Appeals declared Texas' "revenge porn" statute unconstitutional. 
• The Harris County Sheriff fired the deputy who shot Danny Ray Thomas, an unarmed black killed man amidst a psychotic episode while his pants around his ankles when he was killed. 

Find a transcript of this episode below the jump.

Reasonably Suspicious Podcast: Why Mein Kampf is okay but The Color Purple is banned at TDCJ

Check out the January edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud.

If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:

Top Stories

• Banned books in TDCJ (featuring Lauren McGaughy): Why Mein Kampf is okay but The Color Purple is banned.
• Alleged interference at State Counsel for Offenders: Did TDCJ board dictate defense strategies?

Interview

• Ron DeLord, founder of the Combined Law Enforcement Associations of Texas on police pensions, predicts defined benefit pensions for police will vanish within the next couple of decades.

Errors and Updates

• Harris County magistrate judges sanctioned for bail SNAFU
• Austin police union declines to re-enter negotiations after contract rejected

Interview

• Richard Whitaker: Father of a death row inmate, who is also one of his victims, asks the governor, parole board to spare his son's life.

The Last Hurrah

• Latest Dallas exonerations based on prosecutor misconduct
• Quick results from drug-law change in Oklahoma
• Twin Peaks biker cases soon headed to trial

Find a transcript of the podcast below the jump.

Two Big-D capital-murder cases overturned for prosecutor misconduct

Stanley Mozee and Dennis Allen, two Dallas men convicted of capital murder and sentenced to life prison for a 1999 robbery, have finally been cleared of capital-murder charges after the Texas Court of Criminal Appeals approved habeas relief last week.  Their cases were championed by the national Innocence Project and my former employers at IPOT. The CCA set aside their convictions without confirming their innocence. (In cases lacking exonerating DNA or other forensic evidence, that's typically been the best the CCA has been willing to do.) There will be no new trial, however. The Dallas DA's office already agreed to their release in 2014 pending this decision, and has agreed the cases should be set aside.

Instead of straight-up innocence claims, the convictions were overturned based on withheld exculpatory evidence, the failure of prosecutors to disclose incentives for snitch testimony, and prosecutor Rick Jackson allegedly soliciting testimony he knew was false then failing to correct it. See good writeups from the national Innocence Project and from The Open File. Here's the order from the trial judge the CCA affirmed, and 2016 coverage of the case from the Dallas News.

RELATED: This seems like a good opportunity to link to attorney Jessica Brand's recent explainer article, "The Epidemic of Brady Violations Explained." The Michael Morton Act resolved some, but not all, of the discovery problems in Texas, it should be said. The disclosure requirements on Texas prosecutors today significantly exceed those under Brady, which exclusively governed criminal discovery at the time Mozee and Allen were tried.

CORRECTION: The date of the robbery and conviction were misstated in the original post and have been corrected.

Police accountability bills bottled up by House leadership, and other stories

Here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

Tragic shooting colors legislative debates
A Balch Springs cop who shot a fleeing 15-year old with a rifle has been fired from his job and faces murder charges. See the Dallas Morning News coverage. This news spurred the black caucus in the Texas Legislature to issue a stern complaint that none of the important police accountability legislation proposed this session has received a vote on the House floor. Their frustration surely contributed in part to the death of HB 2050, which expanded secrecy provisions related to police misconduct cases.

Sandra Bland Act gutted in senate
The Senate Criminal Justice Committee this week passed out a radically stripped down version of the Sandra Bland Act, but quite frankly it's hard to get too excited about the minimalist items left in the bill. Wrote the Texas Tribune's Jonathan Silver:

Whitmire's version most notably removes language that would ban arresting people for offenses that generally only have fines as a punishment. Earlier versions of the bill also tried to make it easier for nonviolent people in jail to receive personal bonds. Whitmire said fine-only offenses would be addressed in a separate bill, as the Sandra Bland Act is "primarily a mental health, accountability" bill.

The problem with that bit of reportage is that the "separate bill" was SB 271, which had earlier that day appeared on the same agenda with the Sandra Bland Act. But Chairman Whitmire pulled that bill off the agenda hours before the hearing, much to the consternation of the bill author and supporters who believed they had sufficient bipartisan support to pass it out of committee. So Whitmire was pledging to address a problem in a bill which he had already killed just hours before. SB 271's companion, HB 574, is in the Calendars Committee and has yet to be posted for a floor vote. Unless leadership adds the bill to a Major State calendar, it's probably too late for it to be heard.

Remembering (the real) Sandra Bland
Meanwhile, as Grits has pointed out before, it's a bit anomalous to pass a "mental health accountability" bill in response to the Sandra Bland story because she was not, in fact, mentally ill.

Pensions and bill killing
Governing magazine has a nice feature on Houston billionaire John Arnold's efforts to reform public-employee pension plans. Meanwhile, the House debate over Houston pensions ramps up Monday, and every minute it goes on, legislation on the other side of that bill on the calendar dies. The lower chamber, which yesterday ended their workday at 3 p.m., has mapped out a leisurely, care-free stroll toward the Thursday deadline for the House to consider House Bills, not the frenzied pace of work one would expect as hundreds of bills approach a very final deadline. At this point, the House doesn't seem to have much appetite for passing any more legislation and everybody just seems to want it to be over.

Who can settle Harris County bail litigation?
A newly elected Democratic District Judge in Houston has asked the commissioners court whether he can settle with plaintiffs in civil rights litigation against the county's money-based bail system. The commissioners courrt replied that they don't control whether or not he settles, but his lawyer was appointed from the county attorney's office and told the judge she could not settle without permission from higher ups. It's an interesting question: If individual judges start to settle, how long can the county's oppositional approach remain viable?

Of trees, ropes, race, judges and capital punishment
A decidedly un-woke judge faces retraining for lynching suggestion.

Coda to Willingham saga: Did prosecutor commit misconduct?
Jordan Smith at the Intercept has a story from a trial in Corsicana to determine whether the prosecutor in the Todd Willingham case engaged in misconduct when he concealed a deal with a jailhouse snitch who testified against the defendant.

Transparency bill will please prosecutors, police accountability advocates ... unions, not so much

With SB 783, State Sen. Juan "Chuy" Hinojosa has filed a rare example of legislation which should make police accountability activists and Texas prosecutors equally happy. The catch: Police unions will react as though their hair is on fire.

Can't please everybody, I suppose.

Disparate transparency
Hinojosa's bill addresses a 30-year old loophole created by the then-Democratic-controlled Lege to make police disciplinary files secret records in the 70 or so cities which have adopted the state civil service code (Ch. 143 of the Local Government Code). In the other 2,500+ Texas law enforcement agencies, those records are governed by the Texas Public Information Act and virtually the entire file is a public record, with a handful of exceptions involving personal privacy and other statutory limits.

In civil service cities, the personnel file always remains closed and the public can only see summaries of the underlying misconduct in cases where the officer is fired or suspended from work. Under the public information act, the overwhelming majority of documents in that file are public records.

This leads to an odd situation where, for example, police misconduct at the Austin PD must be concealed from the public if the officer is given a warning, reassignment, or any punishment less than a suspension. By contrast, at the Travis County Sheriff's office down the street, if a deputy engaged in the exact same misconduct, their file and the results of the investigation would all be a public record.

Similarly, Dallas and El Paso are the two largest cities which have not adopted the civil service code, and the public in both of these cities gets greater transparency about misconduct at their police departments than do nearby towns where police operate under civil service. In Dallas, this creates a situation where the largest city in the county is fully transparent about police misconduct, generating far superior reporting about the agency by the local press, while in most of the smaller suburban jurisdictions that surround it, most information about police misconduct is kept secret.

Making prosecutors happy
It's easy to understand why police accountability activists want these files open. Why would prosecutors be happy about it? To answer that question, one must recall the passage of the Michael Morton Act by the Texas Legislature in 2013, which strengthened requirements that prosecutors disclose exculpatory, mitigating, and impeachment evidence beyond minimalist requirements in federal precedents under Brady v. Maryland.

Under the Michael Morton Act, prosecutors are responsible for providing the defense with impeachment evidence about their witnesses, including police officers. But prosecutors aren't allowed access to police personnel files any more than are open records requestors under the civil service law. So situations have arisen where prosecutors are held responsible for failing to turn over impeachment evidence which was in possession of the police department but concealed from them by statute. It's considered an act of prosecutorial misconduct to fail to turn over impeachment evidence under the Michael Morton Act, so the secret personnel files put prosecutors between a rock and a hard place.

Perhaps the poster child case for this phenomenon was the Carlos Flores case in San Antonio. Flores pled no contest to assaulting a police officer. But it turned out the officer had beaten Flores severely and then charged his victim with assault. SAPD knew about the incident but did not inform prosecutors that the charges against Flores were a lie. An innocent man was convicted, and later exonerated. (Kudos to the Bexar DA Conviction Integrity Unit for taking a second look at the case.) No prosecutor wants to be blamed by the courts or the media for not turning over information to which they by law don't have access.

Expect nuclear response from police unions 
While prosecutors and police-accountability advocates can commiserate over this feel-good bill, one may expect police unions to react as though the coastal-based senator had suggested chunking babies into the sea. As they're doing in their pension fights, police unions will invoke the officers killed in Dallas and other in-the-line-of-duty deaths and pretend that somehow their sacrifice merits keeping the public in the dark about bad cops. With prosecutors on the other side of the issue, though, that case will be more difficult to make.

To understand this reaction, it's helpful to know a little about the nature of Texas police unions. Texas is a right-to-work state and unions are weak here. To the extent that police unions wield more power than most, it's because their primary function - over and above collective bargaining, which most Texas cities don't have - is essentially to provide Misconduct Insurance to their officers, promising to deploy a phalanx of experienced, hyper-aggressive attorneys and advocates to defend bad cops when they screw up. That's the main thing union dues pay for: When an officer gets in trouble, they may count on a level of legal assistance most criminal defendants couldn't dream of having.

So keeping police from being held accountable for misconduct is a primary police union function, and that includes keeping sustained misconduct out of the public record in case the officer ever wants to change jobs and apply to another department.

In reality, the other 2,500+ Texas law enforcement agencies which for generations have operated under the Public Information Act face no significant problems as a result, so the arguments for keeping these records secret are weak and self serving. That doesn't mean they won't be loud and overheated. Tis the nature of these sorts of debates.

Government doesn't know how many people it shoots, and other stories

Grits has a busy day today so let's round up a few items which might have made it into individual blog posts if I had more time.

Come Correct
Right on Crime published this blog post on the Texas House Corrections Committee's new interim report. See Grits coverage of that document here, here, and here.

Forfeiture target of property-rights push 
Efforts are ramping up on the right to require criminal convictions for asset forfeiture in Texas. See coverage from the Texas Observer,  Hot Air, the Dallas Observer, and Legal Insurrection. Go here to ask your Texas legislators to support these efforts.

Not all costs of failing to 'raise the age' come in budget
After Grits made the link on Monday, advocates and media in Houston and at the capitol invoked 17-year old Emmanuel Akueir's suicide in the Fort Bend County Jail as an argument for raising the age of adult criminal responsibility to 18. The Houston Chronicle coverage included an interview with his family. "'Emmanuel was a minor who was put with adults who've lived the criminal life and are well aware of right and wrong,' said sister Iman Akueir. 'He was a child and treated like an adult. There's no excuse about what happened. Children are children.'" Added an attorney at the capitol event: "'If we had passed this last session, that 17-year-old would not have been in that facility. So we're talking lives here. ...  If you want to talk about costs, ask his parents about costs."

Government doesn't know how many people it shoots

Grits contributing writer Eva Ruth Moravec reported that the Texas' new reporting of police shootings omitted 16 cases last year, calling into question the lack of enforcement mechanism in the law to compel agencies' participation. This tells us the omissions identified by academics in the state's death-in-custody reporting persist in these new police shooting reports. Indeed, the state has struggled to get a handle on how often police officers shoot or kill Texans. Readers may recall that another Grits contributing writer, Amanda Woog, last year determined that the Attorney General had miscounted the number of police shootings, overstating the number or reports they'd received by 20 percent. So the new reporting system is missing quite a few reports, and the AG has bungled analysis of the ones they do get. The bill from last session creating these reports was an important first step, but the law needs to be tweaked to plug these gaps and give it some teeth when agencies don't report.

Oklahoma!

Oklahoma Gov. Mary Fallin continues to push criminal-justice reforms. Wish she could convince fellow Republican Greg Abbott to do the same.

Punishing prosecutors

From the abstract of a new academic paper: "This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. "

How capitalist competition boosted drug cartel efficiency

This interview by Vox with Sanho Tree is worth a read. IMO his central thesis is hard to argue. The drug war has focused for generations nearly exclusively on low hanging fruit, allowing its proponents to mistake activity for achievement without ever seriously threatening the biggest players. Meanwhile, cartel leaders have perfected their craft and devised structures that all but completely insulate them from accountability and ensure that big fish get off, while little fish get eaten. Thought provoking stuff.

Gifts or Bribes? Prosecutor took donations from defendants who received leniency

This is a rather stunning story out of Brown County, and affirms why it was never a good idea to allow prosecutors to accept bribes gifts from people in their jurisdiction.

Most prosecutors in Texas are barred by state law from taking gifts from people in their jurisdiction. Among the ethical questions such arrangements could raise, the most basic is that a defendant could simply buy his way out of punishment for a crime. Yet for nearly a decade, the Brown County Attorney’s Office has arguably done something similar. [County Attorney Shane] Britton has made “donations” from defendants the foundation of a pretrial diversion program that lets people avoid prosecution for drunk driving, driving without a license, shoplifting and other misdemeanors. In this way, hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar, according to county records. By covering other office costs with donations, Britton was even able to convince county leaders to boost salaries for himself and his staff.

In Texas, paying for cops, courts and prosecutors with fees from defendants has gotten more and more popular over the years. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor? 

Only in the last year has Britton’s office started to get critical attention from the county’s legal community. And in the tight-knit courthouse, it’s hard to miss the Texas Rangers collecting records regarding his office, or the rumors of an FBI investigation into whether donations were accepted off the books. When county leaders commissioned a forensic audit of the fund, they found huge gaps in record-keeping that suggested, at best, a casual approach to taking money from defendants. At worst, his critics allege, he ran an illegal collection scheme for over a decade that blurred the lines between fees, donations and bribes.

Read the whole thing, and kudos to Patrick Michels of the Texas Observer. He did a great job with this story.

Plea bargains sans trials, arsenic and hot prisons, and other stories

On another hot, busy day, here are a few items that merit Grits readers' attention:

Denying jobs for minor offenses
DPS is denying job licenses to applicants for quite-minor offenses, reported Eric Dexheimer (July 3) at the Austin Statesman. He provides several anecdotes suggesting that that "state regulators can zealously apply a law in apparent defiance of common sense."

Prosecutor misconduct alleged in capital case
This headline to a July 4 Houston Chronicle story effectively summed up some remarkable allegations which surfaced this week in Houston: "Prosecutors accused of hiding evidence, inventing testimony in death penalty case: Witnesses say prosecutors coerced them."

Late police officer's chase negligence partly to blame for her death
In an intoxication manslaughter case out of Montgomery County - in which a Patton Village police officer died while chasing a DWI suspect, in an accident that also killed an 11-year old child - DPS investigators determined that the late officer was partly at fault because he "disregarded the red light" and "failed to slow" as he entered an intersection. It's worth mentioning that, last year, we learned high-speed chases are much deadlier than was previously thought. Grits wishes these deaths were tracked as meticulously as the government tracks deaths in custody, and now police shootings.

Arsenic and hot prisons
The combination of heat litigation and the need for arsenic remediation make the Wallace Pack unit 2016's poster child for the ongoing fight over excessive heat in un-airconditioned prisons. See also recent story by Brandi Grissom. As Mother Jones pointed out recently, it's incredibly hard to sue prisons. So the fact the Pack unit litigation has gotten this far means they've overcome some major procedural and evidentiary hurdles. That implies the problems have reached fairly extreme proportions.

Plea bargains sans trials?   
On my short-term to-read list: A new law review article by Penn law prof Stephanos Bibas titled, "Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops."  The premise: American law has largely abandoned "the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes." So, the plea bargaining system must be designed to stand on its own and re-institute some of the protections lost by eliminating trials for most defendants. From the abstract:

Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just."

On the need to measure (and limit) prosecutor discretion

Grits has been thinking quite a bit about Prof. John Pfaff's observations that we don't have a lot of data about prosecutors' functions, and what might be done about it. So I was delighted to discover this relatively new academic paper titled, "Prosecutorial Analytics," from Jason Kreag out of U. of Arizona's law school, which instantly vaulted to the top of Grits' to-read list  Also check out Conor Friedersdorf's piece in The Atlantic on prosecutors titled, "Travesties in criminal justice that are mostly ignored."

Regarding that latter recommendation, I should say I disagree somewhat (and suspect Shannon Edmonds, much less John Bradley, would, too), with Friedersdorf's contention that "Comparatively little attention has been paid to the role that prosecutors and local courts play in the criminal justice system." It's just that most of that attention has focused on outright prosecutorial misconduct and has taken place in the context of the innocence movement.

Decarceration advocates, by contrast, are asking that we consider not just outright misdeeds by prosecutors but also harmful use of their legal discretion. Upon asking the question, one immediately discovers that there's scarce little data - much less apples-to-apples data across jurisdictions - to judge prosecutors' practices related to over-incarceration. Since it's impossible to control what one cannot measure, developing those metrics is an important, oft-neglected step toward confronting mass incarceration. Which is why I'm oddly looking forward to diving into the dryly titled "Prosecutorial Analytics" for Grits' holiday-weekend reading.

MORE (7/3): From "Prosecutorial Analytics," which "argues that analytics offers promise as a tool to 1) regulate prosecutors’ expanding power; 2) more accurately measure prosecutorial performance; and 3) improve constitutional decision-making."

Analytics can mine historical data to help identify prosecutors who might be more likely to commit misconduct in the future. It can help identify prosecutors or prosecutorial offices that engage in or are more likely to engage in race-based jury selection practices. It can also help identify undesirable trends in charging and plea bargaining. Simultaneously, it can provide the public better data to evaluate prosecutorial performance. We are unlikely to ever approach the equivalent of open-source prosecuting, but analytics gets us closer. And in doing so, it promises dramatic increases in transparency.

Here are some suggestions for using analytics to identify patterns in prosecutorial charging decisions:

While many studies focus on the racial implications of prosecutorial charging decisions, analytics can deliver relevant information about additional factors, including factors that do not raise constitutional concerns. For example, we could track 1) how often the crime of arrest corresponds to the charged crime and to the ultimate conviction; 2) which crimes are complements in the sense that they are often charged together; 3) how often is a particular crime charged and how often is it dropped (and at what stage); and 4) whether these actions correlate with a host of variables including, the race and gender of the defendant and victim, whether the defendant is in custody pre-trial, or, for example whether the defendant is represented by a private or public defense attorney. Importantly, this information could be compared among prosecutors, across different prosecutorial offices, and over time.

 Also: "While the Court’s Fourth Amendment jurisprudence has allowed the growth of analytics as a crime-fighting tool, constitutional criminal procedure has simultaneously insulated prosecutorial decision-making from its reach."

AND MORE: Another recent academic paper for the reading list: "The nature and function of prosecutorial power."

Risk assessments, visitation, and imaginary prisons

While I'm preoccupied with other matters, including another small video project to be unveiled soon (the last one has been viewed about 100K times now and received nearly 1,000 Facebook shares), here are a number of items which merit Grits readers' attention:

On the risks of risk assessments
Grits' views on risk assessments are still up in the air, or more specifically, situational. I tend to dislike the idea at sentencing (a lot of "future dangerousness" testimony in capital cases has been pure junk) but mind them less for parole boards, whose members by definition make risk assessments with or without a formal instrument. I also mind the idea less for pretrial assessments, when the alternative is to leave folks sitting in jail. But the critique is that risk assessments are inaccurate and discriminatory, and this blogger did a good job compiling links to stories that call them into question, for those interested. This is an important emerging debate among both advocates and criminal justice professionals; I hope it can be had with a tad less vitriol than has characterized the discussion so far. Folks can disagree in good faith here.

In favor of in-person visitation
Check out a cool interview with our pal Jorge Renaud in a publication called The Establishment on the grassroots pushback against elimination of in-person visitation at prisons and jails.

Offender Orientation manual
A new version of the TDCJ Offender Orientation manual came out in April.

Williamson County DAs keep embarrassing local voters
Between John Bradley and now Jana Duty, who was recently disciplined by the state bar, Williamson County voters sure know how to pick reputable DAs! Local leaders this week held a press conference giving her until "sunset" on Friday to resign, though I'm not sure there is legal leverage to bounce her out. Every Texan above a certain age knows of "sundown towns," of which there used to be a few here, but this is the first time I've heard of such an ultimatum aimed at a sitting elected prosecutor.

Imaginary Prisons
An old college buddy, local architect-turned-furniture-maker Mark Maček, turned me on to Giovanni Battista Piranesi (1720–1778), which led me in turn to this 16-print series of sketches titled "Imaginary Prisons." Awesome.

If you've got a spare $400K or so you could probably buy a copy. I'd like to read the orientation manual for THAT place.

Fifth Circuit finds prosecutor misconduct, issues slap on wrist

The Fifth Circuit Court of Appeals recently vacated an asset forfeiture ruling (see the order) after finding that the prosecutor in the federal case, Mindy Sauter, had concealed the fact that an alleged accomplice was promised a favorable deal in exchange for testimony, reported William R. Stewart at The National Law Review.

Giving credence to the adage that honesty is the best policy, a panel from the Fifth Circuit Court of Appeals in United States v. Dvorin affirmed the district court’s finding that the lead prosecutor “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” during a bank fraud prosecution by withholding material evidence concerning the credibility of a key government witness, and also by knowingly using false testimony to obtain a conviction. The panel also found that the government failed to overcome the presumption of prosecutorial vindictiveness because it added an additional forfeiture notice once forced to retry the case as a result of prosecutorial misconduct during the first trial.

The 5th Circuit vacated the forfeiture holding but declined to apply additional sanctions at retrial. Defendant Dworin:

sought dismissal of the indictment with prejudice as a sanction for Sauter’s misconduct, or alternatively precluding [alleged accomplice Chris] Derrington from testifying at all in the second trial. The district court denied these sanctions, and the panel upheld the denial, noting that there was no evidence of bad faith or ill-intent in the record to support imposing such severe sanctions.

No bad faith, even though the court also found Ms. Sauter "permitted [Mr. Derrington] to testify falsely" about not having an agreement with the prosecution! So basically, the prosecution's case won't be hindered, only delayed, by having committed reversible misconduct. Federal prosecutors still get a second bite at the apple. Taking away $91K in forfeiture money their agency had seized amounts to a wrist slap, as sanctions against federal prosecutors go. The Fifth Circuit basically said to the US Attorney, "Yeah, you cheated, but go ahead, it's okay."

It seems likely to this observer that, given the status quo, Ms. Sauter will suffer few if any meaningful consequences from this beyond a little embarrassment and the DOJ losing an amount of forfeiture money that would barely qualify as a rounding error in their budget. But what should happen when prosecutors flaunt the rules?

Let's open it up to the readers: What is the appropriate sanction when courts determine that prosecutors cheated to win? Should their bar license be threatened, their employment be called into question, or perhaps the withheld evidence should be excluded at retrial? Should punishment for a prosecutor's first offense differ from subsequent ones? And who should administer sanctions? Their bosses? (I.e., US Attorneys for the feds, District Attorneys at the local level.) The courts? (And if so, which one[s]?) The state bar? Somebody else?

Are there creative approaches to be had? For example, one could envision a rule or statute mandating a 30-day jail stint whenever a court finds that a prosecutor willfully withheld evidence. Or, should prosecutors retain absolute immunity in cases where they break the rules? There has to be some mechanism to meaningfully punish cheating prosecutors because the ones we supposedly have now don't work well.

RELATED: From Casetext, Coddling Prosecutors.

Unmaking Murders, and other exoneration stories

Your correspondent was briefly quoted in the Dallas News' coverage of the latest annual report from the National Exoneration Registry, available here.

Texas saw 54 exonerations in 2015, 42 of which were drug cases from Harris County. Addressing the drug exonerations, the registry report asked the obvious question:

Why did these defendants plead guilty?  Inger Chandler offers two explanations: some probably thought the pills or powders they were carrying contained illegal drugs when in fact they didn’t; others — especially defendants with criminal records, who generally cannot post the comparatively high bails that are set for them and who risk substantial terms in prison if convicted — agreed to attractive plea bargains at their initial court appearances, despite their innocence, rather than remain in pretrial custody and risk years in prison.

There is some evidence that pretrial detention and the fear of long terms of imprisonment did influence these false guilty pleas. Twenty of the 25 Harris County drug exonerees who pled guilty to significant terms of imprisonment (3 months to 7 years) had felony records that we know about, while 15 of the 23 who had no known criminal records got no time in jail at all.

In 41 of the 73 drug crime exonerations in Harris County the defendants were arrested on the basis of “field tests” that indicated the presence of controlled substances. (In the other cases the arresting officers mistook an innocent white powder for cocaine, a hand-rolled cigarette for marijuana or non-prescription pills for controlled drugs.)  Commonly-used drug field tests are  notoriously unreliable; they routinely misidentify everything from Jolly Ranchers to chalk to motor oil as illegal drugs. They are inadmissible as evidence in court but sufficient to justify an arrest and they may convince an innocent defendant that she is bound to be convicted at trial.

The 149 exoneration cases nationally, as a whole, include more cases than any previous year in which:

• Defendants falsely confessed
• Government officials committed misconduct
• The convictions were based on guilty pleas 
• No-crime fact occurred
• A prosecutorial Conviction Integrity Unit worked on the exoneration

The first Conviction Integrity Unit was in Dallas and Texas now has one in each of its five largest counties, with Harris County currently the most active. The rise of Conviction Integrity Units is a big reason the number of exonerations keeps rising in Texas and nationally. Exonerations historically have been proven by lone-wolf attorneys, journalists, or lay investigators against overwhelming odds. When DAs put their institutional weight behind these efforts and facilitate exonerations instead of obstruct them, they tend to happen with greater alacrity.

Another notable fact bite: "Five defendants who had been sentenced to death were exonerated in 2015: one each in Alabama, Arizona, Georgia, Mississippi and Texas. They had been imprisoned for 30, 25, 28, 19 and 10 years, respectively." Alfred Brown out of Houston was the Texas death row exoneree.

Under the subhed, "Unmaking Murderers," the report noted that 58 murder convictions were overturned in 2015, the most ever. They also recorded the highest ever number of overturned convictions based on false confessions (27).

A whopping 44% of 2015 exonerations nationwide came after defendants pled guilty! (Harris County's drug cases boosted that number.)

Finally, it's worth pointing out one of the final Texas' exonerations of 2015, that of Calvin Day in Bexar County, a doctor charged with sexually assaulting patients in his office. According to the registry's summary of his case, Day passed a polygraph related to allegations that he had extramarital relations with then-elected DA Susan Reed. In response, her First Assistant Cliff Herberg essentially threatened the defense attorneys who in turn did not aggressively interrogate the key witness against their client. (See related Grits coverage.) In open court in December when Day's case was dismissed, the trial judge accused Reed and her first assistant of "inappropriate" conduct. In this instance, the case falling apart may have less to do with Day's lack of culpability than the state's bungling. He still faces criminal charges related to an alleged assault on a different patient.

Innocence work here, there and yon

Big day for my employers at the Innocence Project of Texas today:

Prosecutor faces interrogation over Brady
In Dallas, IPOT board chairman Gary Udashen questioned a former prosecutor accused of withholding Brady material in the 1999 murder convictions of Dennis Allen and Stanley Mozee (Mr. Allen is an IPOT client; Mr. Mozee is represented by the national Innocence Project). After prosecutors and the trial judge recommended relief, the Texas Court of Criminal Appeals ordered the trial court to put the prosecutor on the stand and ask him why he failed to turn over evidence of deals with jailhouse informants. That's what happened today.

DNA mixture notification snafu
This afternoon, IPOT's legal director Mike Ware attended a Forensic Science Commission work group discussing notification and indigent defense challenges related to defendants convicted based on erroneous DNA mixture protocols. (See prior Grits coverage.)

Exoneration Commission: What issues might it investigate?
See recommendations drafted by your correspondent on behalf of the IPOT for the Timothy Cole Exoneration Review Panel suggesting issue areas for possible study based on an examination of recent innocence cases. The commission's first meeting is Thursday afternoon in Austin.

Tack on the fact that we sent out a fundraising email this morning and it's been quite a busy day.

Prosecutor to testify over withheld informant deals

Pursuant to a Texas Court of Criminal Appeals order, on Monday in Dallas a former prosecutor will be called to testify regarding deals with jailhouse informants discovered during the habeas process which had never been disclosed to counsel at trial. See a brief announcement posted today by my employers at the Innocence Project of Texas (IPOT).

Dallas County District Judge Mark Stoltz

Dallas County District Judge Mark Stoltz

Dallas District Judge Mark Stoltz ordered the two defendants, Dennis Allen and Stanley Mozee, released on bail last year after agreeing with the District Attorney that exculpatory evidence had been withheld and they deserved relief. But the CCA remanded the case, ordering the trial court to take testimony from the prosecutor in question, which is what will happen Monday.

For more background, see past coverage from the Dallas Morning News and the national Innocence Project, which represents Mr. Mozee. IPOT represents Mr. Allen.

MORE: With Monday's hearing happening so soon before the first meeting of the Timothy Cole Exoneration Review Commission on Oct. 29, it occurred to me it may be helpful to provide links to policy resources on confidential informants related to issues which arise in these two cases and others since 2010 - most notably Richard and Megan Winfrey involving jailhouse informant testimony:

• Russell D. Covey, "Abolishing Jailhouse Snitch Testimony," 2014. 
• The Justice Project, "Jailhouse Snitch Testimony: A Policy Review," 2007.
• Center on Wrongful Convictions (Northwestern University), "The Snitch System," 2005.
• Alexandra Natapoff, "Snitching: The Institutional and Communal Consequences," 2004.
• Alexandra Natapoff, "Beyond Unreliable: How snitches contribute to wrongful convictions," 2006.
• Written testimony by Alexandra Natapoff on law enforcement's use of confidential informants to the US House Judiciary Committee, July 2007
• Robert Bloom, "Jailhouse Informants," Criminal Justice magazine (ABA), Spring 2003,
• Dahlia Lithwick in Slate on the Orange County jailhouse snitch scandal (June 2015).
• Denver Post series (April 2015): See here, here, and here.
• Pittsburgh Post-Gazette series on local "informant mill" (Oct. 2014): See here, here, here, and here.
• Washington Post (Jan. 2015) on the failure to protect informants who cooperate with police. 
• Truthout (March 2015) on a police-run jailhouse informant ring in Detroit.
• IPNY on the use of incentivized informant testimony. 
• IPNY model legislation governing informants.
• Tools for lawyers to challenge informant testimony from the ACLU.
• Snitching.org (Natapoff's blog)