Governor signs omnibus innocence bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:

[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations.  Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup.  Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it.  And, they have to do it every time.  So, it’s a big deal for Texas.

The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime.  And, they testify to this confession.  So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense.  So, it is highly unreliable information to begin with.  And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit.  And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.

Three good bills in CrimJur committee Monday

Looking at the agenda for Monday's Texas House Criminal Jurisprudence Committee, here are three items which merit Grits readers attention. (Not that there aren't other important bills up that day, these just jumped out at me as particularly noteworthy.)

First, the big innocence-related bill of the year:

HB 34 (Smithee) Relating to measures to prevent wrongful convictions. This bill came out of the Timothy Cole Exoneration Review Commission recommendations and is being carried by that group's chair. It requires tracking and disclosure of confidential informant arrangements, recording of custodial interrogations, and requires law enforcement agencies to adopt the model eyewitness ID policy created by Sam Houston State's Law Enforcement Management Institute of Texas (LEMIT) instead of each coming up with their own. These are modest but important reforms, the most obvious next steps in the Legislature's decade-long, bipartisan effort to prevent false convictions.

Grits is also a big fan of another bill on the agenda Monday, HB 1465 (Moody) which tells judges to waive court costs if they determine a defendant is indigent. This makes loads of sense. If they're indigent, after all, they cannot pay.

One passing thought, though: On the House floor, Rep. Andrew Murr included an amendment to HB 351 (Canales), which earlier passed out of the same committee, to say courts could charge a "reasonable" fee if they assign an indigent person community service. Language in those two bills may need to be reconciled if both make it all the way through the process.

Finally, this blog doesn't generally follow capital issues, but I'm interested in HB 3054 by Herrero/Smithee requiring unanimity changing faulty jury instructions for imposing the death penalty in capital cases and allowing lawyers to inform the jury of the implications if they can't agree. (Presently, that's not allowed.) As it happens, yesterday Grits met a gentleman who announced he's from the "Fully Informed Jury Association." He was a conservative at the capitol for the asset-forfeiture subcommittee hearing. I know next to nothing about his group, much less if they're even aware of HB 3054, but it's almost like informing jurors about the power they wield is a theme in the air this week. I'm looking forward to hearing debate on this bill Monday.

Dead dogs, shot owners, greedy clerks, phony risks, and a 'seismic change in police interrogations'

Here are a few odds and ends that each merit their own blog posts, or at least they would if I weren't spending my days writing Just Liberty emails and action alerts. (E.g., go here to send your state rep an email asking them to sign on in support of Rep. Garnet Coleman's "Sandra Bland Act.") So while Grits is focused elsewhere, check out:

• Eva Ruth Moravec, Houston Chronicle: "Unarmed people hurt when Texas officers shot at dogs." Includes slide show of dogs shot by cops!
• And from Mike Ward, also in the Chron: "State budget writers say four prisons may now be up for closure." (Hurray!)
• HB 1258 is a terrible bill that would stop Texas courts from providing internet access to the most public of public records in the government's possession: courthouse files. The bill was heard in committee yesterday. The real reason clerks want to deny people access to records which are public under the open-courts doctrine (which insists access must not be impeded by unreasonable  financial barriers)? After you wade through all the BS being thrown up about phony baloney "risks and liabilities," the bottom line is, clerks presently charge $1 per page for copies and fear the revenue stream from subscriptions won't cover the loss.
• Here's a headline for which Grits has been waiting for years: "Lawmakers, judges square off against bail bondsmen in push to end cash bail for nonviolent offenders." Chairman John Whitmire is holding a press conference this afternoon on the bill.
• See Raise-the-Age arguments from the Justice Policy Institute and the Fort Worth Star-Telegram, and coverage of an advocacy day yesterday on the topic (where the missus spent her day) from the Dallas News.
• It turns out, the people most likely to discover wrongful convictions are the ones looking for them. Who'd have thought? Oh yeah, every innocence project affiliate in the country.
• In El Paso, the Public Defender caseload is rising.
• Brandon Garrett, The Baffler: "Trials and Errors: Inside the Great Forensic Science Boondoggle."
• Marshall Project: "The Seismic Change in Police Interrogations." This is huge news: The group that developed the Reid technique is no longer teaching it. (For more background on the Reid technique, see here, here, here, here, here, here, and here.) The Reid technique was developed after third-degree  tactics were outlawed in the wake of the Wickersham Commission in the '30s. By the 1940s, John Reid had famously developed an interrogation method deploying psychological instead of (as much) physical coercion, but attacking the same mental weak spots, and modern US interrogation techniques were  born. Most other nations' police use less accusatory, more fact-gathering-based interrogation methods, which produce just as many real convictions but fewer false ones.

A first look at Exoneration Review Commission recommendations

See the new report from Texas' Timothy Cole Exoneration Review Commission, released this week. Let's review their main proposals:

ELECTRONIC RECORDING OF INTERROGATIONS 

I. Require either audio or audiovisual electronic recording of interrogations by law enforcement agencies when investigating all felony cases. 

II. Require recording to begin when the suspect enters the interrogation room. 

III. Enforce compliance with new recording requirements by permitting the admission of an unrecorded statement only if the judge finds good cause for the failure to electronically record the statement, and establishing a presumption that an unrecorded statement is inadmissible as evidence if the judge finds that no good cause exception applies. 

This is a much needed reform. According to the report, 68 percent of Texas law enforcement already have capacity to record some interrogations. So this recommendation would pick up those other stragglers and make the policy's application uniform across the state.

The commission recommended recording interrogations for all felonies instead of only serious violent felonies, as suggested in compromise legislation that failed in the past. But, as a dissenter pointed out, given how cheap and ubiquitous recording equipment is in the 21st century, there's really no good reason not to do it for misdemeanors, too. This is as much a best-practice as a reform, since recorded statements from a witness are superior evidence to written confessions. A stakeholder survey whose results were published in the report found that 88 percent of judges and 85 percent of police at NON-recording agencies thought recorded interrogations were beneficial; 72 percent of prosecutors and 70 percent of defense attorneys agreed.

FALSE ACCUSATION/INFORMANT REGULATION  

I. Require prosecutor offices to have written policies on tracking and disclosure of impeaching information on jailhouse informants.  

II. Permit the admissibility of jailhouse informants’ complete criminal history, including criminal charges that were dismissed or reduced as part of a plea bargain. 

III. Require prosecutor offices to establish an internal system to track the use of jailhouse informants including, but not limited to, cases in which the jailhouse informant offered testimony and the benefits provided in those cases. 

These important suggestions represent the minimum necessary just to evaluate the problem. Transparency is a first step toward reform, not an end game. But these would be a good start. The Tarrant County District Attorney, the report noted, implemented precisely this sort of tracking system in June 2016.  In Grits' view, there's no reason to limit such a tracking system to "jailhouse informants," but instead anyone who trades testimony for leniency should be included in the system.

OTOH, they famously had such an informant tracking system in Orange County, CA, too, they just used it to aide in perpetrating abuses instead of documenting and rectifying them. So, while tracking informant use is a fine suggestion - and I believe the information generated could better inform a future round of more substantive reforms - these recommendations won't prevent some of the worst abuses which arise from prosecutors trading dismissals or sentence reductions for testimony.

FAULTY EYEWITNESS IDENTIFICATION  

I. Require training for law enforcement officers on eyewitness identification procedures. 

II. Require making juries aware of prior identifications of the suspect by the witness when an in-court identification is made.  

III. Require law enforcement agencies to adopt the Bill Blackwood Law Enforcement Management Institute of Texas Model Policy. 

Here, Grits wishes the commission had dug in more deeply. The biggest problem with the eyewitness ID law we passed in Texas is that there's no enforcement mechanism. If police don't follow best practices, the questionable ID cannot be excluded. And the statute includes no jury charge or other mechanism to highlight the use of problematic testimony to a jury, whom studies show are highly likely to accept eyewitness identifications as "gold standard" testimony. A recent dissent from Court of Criminal Appeals Judge Elsa Alcala demonstrated how and why problematic ID practices have been allowed to continue by Texas courts even after reform legislation had passed. In that case, an identification was allowed even though the defendant was the "sole one in the photo array matching the physical description of the shooter."

Grits isn't saying these recommendations are bad ideas; I support them. But it's one thing to require agencies to put good policies down on paper, and quite another to penalize them effectively if they then choose not to follow them. That's where Texas has fallen down.

FORENSIC SCIENCE PRACTICES  

I. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the use of drug field tests used by law enforcement agencies.  

II. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the process of crime scene investigations.  

III. Recommend that crime labs in all cases moving forward complete testing of substances in all drug cases regardless of the results of a drug field test, and that crime labs go back through previous cases in which the collected substance was not confirmed by lab testing.

These recommendations are aimed at the exonerations out of Harris County of drug defendants accused by faulty field tests. Many defendants have been falsely accused, jailed, and pled guilty to get out before the crime lab could reach exonerating results, sometimes months or even years later.

Again, Grits finds these recommendations too tepid. Perhaps most critically, they made no suggestions for rectifying notification issues regarding large-scale forensic errors. Many defendants never discover they might be eligible for habeas corpus relief, and there are plenty of systemic actors - especially among tuff-on-crime prosecutors and the Government Always Wins faction at the Court of Criminal Appeals - who would prefer they never do. The first step toward securing justice for them would be to make sure they're aware of their situation.

More criminal justice bills pre-filed at the Texas Lege

Here are a few more bills (see here, here, here and here for earlier installments) from the first week of pre-filing at the Texas Legislature that may merit Grits readers' attention:

Can prison spending be limited to population/inflation growth rates?
There are a couple of bills out there to restrict state spending to the combined effects of inflation and population growth, like this one, so it's worth mentioning that state prison spending has far surpassed those rates consistently for more than three decades. Also, there's a basic math problem with a constitutional amendment proposed by rookie Sen. Charles Perry limiting budget growth to the sum of inflation and population growth (or personal income growth, whichever is lesser). However, to actually index spending you would multiply those rates, not add them. Over time, his method would systematically under-fund the budget if not corrected. Perhaps if legislators want a smaller budget, they should propose cuts instead of constitutional amendments.

Whither border security funding if highway money spent on highways?
Also on the budget front, SB 139 by rookie Sen. Charles Perry and SB 184 by Sen. Charles Schwertner would cease using money from the state highway fund to finance the Department of Public Safety. The questions then become: Where does DPS funding come from? And, is their border security profile sustainable without tax increases?

How to raise local property taxes everywhere
HB 191 by Rep. Jim Murphy creating mandatory minimums for people convicted of multiple misdemeanors would launch a new 21st century jail building boom in Texas. County commissioners and Sheriffs, if they're wise, will come out of the woodwork to oppose this. In many counties in recent years, rising jail costs have been the primary driver for local property tax increases.

Record custodial interrogations
State Sen. Rodney Ellis has once again filed legislation to require recording interrogations of people suspected of serious, violent offenses. Make me philosopher king and I'd require recording of all custodial interrogations, but this is a good start. Last session state  Rep. Terry Canales carried  companion legislation in the House and Grits expects him to file the bill again in the 84th session.

Prioritize saving lives over prosecution in overdose cases
Rep. Ryan Guillen put forward a version of a Good Samaritan bill, HB 225, to make it a defense to prosecution on drug charges for people who call 911 when someone they're with overdoses. There have been several versions of this kicking around over the years. Last session a version cleared committee but, like many criminal justice reform bills, never received a vote on the House floor.

Grants, policies for police bodycams
In 2003, state Sen. Royce West carried legislation that created a grant fund for police departments to apply to install dashcams in patrol cars, and most of them did. Now he's filed SB 158 which would authorize the state to issue grants for police body cams and requires those using them to create written policies that govern their use and train on them. The difference between this and the one authorizing dashcams is that in 2003, Sen. West also passed a measure authorizing a statewide bond election for money to pay for them (which voters approved) and requirements for racial profiling reporting that were more stringent if departments didn't have cameras in their cars. This bill presently includes neither as many carrots nor sticks as his earlier legislation. For body cams to be adopted as widely as dashcams, there'd need to be a pot of money to fund these grants and some incentive for departments to use them.

No probation for illegal immigrants?
In SB 174, Sen. Joan Huffman recommends that "illegal aliens" be denied the chance to receive community supervision as a punishment, another potential budget buster for both state prisons and county jails. If this bill doesn't receive a gigantic "fiscal note" it will be proof once and for all that the Legislative Budget Board's mechanism for assessing bills' fiscal cost is utterly and profoundly broken.

Youth especially vulnerable during police interrogation

Adolescents are a "psychologically vulnerable" population when it comes to police interrogation tactics, says a study highlighted in this New York Times piece (Oct. 13), because they're easier to manipulate and don't assert their rights. The article opened:

Even when police interrogators left the room, cameras kept recording the teenage suspects. Some paced. Several curled up and slept. One sobbed loudly, hitting his head against the wall, berating himself. Two boys, left alone together, discussed their offense, joking.

What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.

Therefore none had a lawyer at his side. None left, though all were free to do so, and none remained silent. Some 37 percent made full confessions, and 31 percent made incriminating statements.

These were among the observations in a recent study of 57 videotaped interrogations of teenagers, ages 13 to 17, from 17 police departments around the country. The research, published in Law and Human Behavior, adds to accumulating evidence that teenagers are psychologically vulnerable at the gateway to the criminal justice system. Youths, some researchers say, merit special protections.

According to federal statistics, nearly 1.5 million teenagers were arrested in 2011, the last year for which data was collected.

The article concluded mentioning a couple of other recent developments on false confessions of which I wasn't aware:

Citing recent research, the American Psychological Association has called for widespread protections for suspects, including teenagers, during interrogations. The recommendations include limiting the length of interviews; videotaping them in their entirety; assuring that teenagers are always accompanied by a lawyer; and that interviewers be trained to reduce the risk of eliciting false confessions from impressionable suspects such as youths.

This spring, the International Association of Chiefs of Police, a law enforcement coalition, along with the federal Office of Juvenile Justice and Delinquency Prevention, developed online training for those who interview adolescents. Drawing from developmental research, the program instructs officers to explain Miranda warnings in language teenagers will understand and not to make false promises of leniency, because of youths’ proclivity toward gullibility.

“We want to avoid involuntary or false confessions from juveniles,” said John Firman, director of research for the association. “The ultimate goal is to get accurate information from them. And if you don’t understand juvenile brain development, the likelihood is that you’ll get bad information.”

Disputed confession corroborated by jailhouse snitches seeking secret deals may have resulted in two false convictions

Grits apparently forgot to post anything about this story when it came out last month, so let's correct the oversight.

Two Dallas men, Dennis Allen and Stanley Mozee, who were convicted based on Mozee's disputed, un-recorded confession and the testimony of now-discredited jailhouse informants, appear poised to have their convictions overturned, the Dallas Morning News reported last month (Sept. 11). My employers at the Innocence Project of Texas along with the national Innocence Project are representing Allen and Mozee. The paper's editorial board opined the next day that, "As the underpinnings of the convictions come out, criminal justice advocates in Austin will inherit more ammunition for one overdue reform: mandatory recording of suspect interrogation." The editorial board elaborated:

Key to the prosecutions is what transpired between Mozee and a detective in the interrogation room. The detective said the suspect was well-rested and lucid for the last session. Mozee said he was strung out on drugs and alcohol and was off his psychiatric medication. Moreover, he said the detective threatened him with these words: “Somebody’s going to get the needle, and it’s going to be you if you don’t come up with something.” That last interrogation ended with Mozee signing a statement depicted by prosecutors as a confession but later disputed by the suspect himself. Further, it was at odds with other evidence in the case, the Innocence Project brief says.

The phenomenon of false or coerced confessions has been established in recent years as contributing to an alarming percentage of convictions later overturned by DNA tests. It would be foolish for state lawmakers to ignore the chance to build in a common-sense safeguard and require police to start a recording when they formally question a suspect. Jurors would be thankful for eliminating the guesswork.

The Allen-Mozee cases also illustrate the wisdom of reforms enacted by lawmakers just last year. The Michael Morton Act, which took effect Jan. 1, requires prosecutors to share key case information with the defense. Innocence Project lawyers cited numerous documents favorable to Mozee and Allen that weren’t divulged before trial — such as correspondence with jailhouse informants who expected favors in return for testimony against the murder defendants.

If prosecutors stitch together a case with witnesses such as this, the reality ought to be clear to the court. The Constitution demands it, now with backup from Texas law.

According to the Morning News report, the habeas writs hinge not just on DNA testing techniques that didn't exist at the time of trial but also newly discovered evidence that prosecutors allegedly concealed informant deals from both the defense and jurors.

Though [Dallas attorney and Innocence Project of Texas board chair Gary] Udashen said the DNA evidence is compelling, he said attorneys were startled by additional evidence they found in the prosecutor’s original case file. Under an “open file” policy adopted by District Attorney Craig Watkins in 2008, attorneys filing a writ can view the file while preparing their case.

In that file, attorneys found letters from the inmates who had testified that they’d heard the two men admitting to the murder.

During their court testimony, the informants said neither had been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the State in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while insisting to jurors “that no such discussions with these informants had ever occurred.”

The two inmates have now told the defense attorneys their testimony was false, the filing says.

[Retired prosecutor Rick] Jackson said he “never, ever made any type of deals up front. I told every single lawyer I ever dealt with that was the case and that was no different in that case.

“There were no deals in place, period, end of story.”

Udashen said he has a “high degree of confidence that the convictions are going to be set aside.”

“Whether or not it ultimately results in an actual innocence finding,” he said, “I think a lot of that is going to depend upon what the DA’s office determines in their own independent investigation.”

The Morning News is exactly right about the significance of this case vis a vis legislation to require police to record interrogations. Who doesn't think justice would have been better served - then and now, whether these two men are innocent or not - if Mozee's original interrogation and confession had been recorded and everyone could see for themselves what happened there?

As recording tech and  storage gets cheaper and easier to manage, there are increasingly scarce few viable arguments against recording interrogations except that police are afraid the public may disapprove of their techniques.

Roundup: Naming the new Travis DA's office, and other stories

Here are a few odds and ends that didn't make it into independent posts this week but deserve Grits readers' attention:

Troopers association litigation fails
A judge dismissed the civil suit against the state from the Texas State Troopers Association, which faces penalties and the removal of boardmembers over an illegal telemarketing scheme. Reported the Austin Statesman, "In its lawsuit, the troopers association accused the attorney general’s office of trying to bully the group into signing an agreement that called for fines and the resignation of executive director Claude Hart and board members Lee Johnson, Anne Johnson and Herschel Henderson. Those leaders would also be banned from working for or volunteering with any Texas group that purports to benefit public safety, the document states." Further, "According to the organization’s 2012 tax forms, the group raised more than $3.2 million and paid $2.5 million of it to a telemarketing firm. The association’s largest expense, $311,000, was for salaries. Other costs included $76,000 for lobbying and $35,000 in benefits to members." For long-time readers, this is a different group from the Texas Highway Patrol Association, though the economics of their telemarketing program operated on the same model.

Audit draft criticizes Dallas probation on technical violations
Reported the Dallas Morning News, a leaked TDCJ-CJAD audit of the Dallas County probation department found that "officers did not follow court or department policies more than two out of three times when handling 'technical violations' by probationers, according to a preliminary draft of an audit" obtained by the paper. But "Michael Noyes, the head of Dallas County adult probation, said he doesn’t believe the numbers in the state’s draft report are accurate. He said auditors from the Texas Department of Criminal Justice may have confused strict policies that apply to probationers only in certain court programs and applied them to all probationers."

CCA: New punishment hearing because prosecutor failed to turn over snitch jacket
The Texas Court of Criminal Appeals this week ordered a new punishment hearing in a capital  murder case because the prosecution did not reveal that a confidential informant planted a shank in the defendant's cell that was used to argue his "future dangerousness." Remarkably, "Following the evidentiary hearing, the trial court found that the State did not fail to produce exculpatory evidence or knowingly present false testimony. However, the trial court also found that [the informant] fashioned and planted the shank as described. Therefore the evidence that applicant possessed the shank was false. The trial court also found that this evidence was central to the State’s future dangerousness case and to the jury’s decision at punishment." The court deferred to those findings, including the declaration prosecution "did not fail to produce exculpatory evidence," even though the exculpatory evidence they failed to produce was the basis for a new punishment hearing.

Out of control: A substantive claim
Note to prosecutors: Before accusing someone of committing fraud to obtain a controlled substance, first make sure the substances you're after are, you know, controlled. In another CCA habeas writ granted this week, the "Applicant was convicted of attempting to obtain a controlled substance by prescription fraud and was sentenced to two years’ imprisonment." Her prevailing habeas claim: "there is no evidence that Naproxen is a controlled substance." The trial court agreed, the CCA agreed, bada bing, bada boom, relief granted. This sounds like another episode where lengthy crime lab wait times may have ended up coercing a plea from someone for a crime they didn't commit.

All in the family bank robbing
From the "only in Texas" file, and Texas Monthly's Skip Hollandsworth.

Dumb: Life in prison for pot brownies?
With a possible first-degree felony sentence for drug possession of 5-99 years, it's possible, if unlikely, for a 19-year old defendant to spend the rest of their life in prison on a weight-based drug charge, a possibility touted in KEYE-TV's report on a Williamson County case. But how ridiculous is it for authorities to include the brownies in calculating the weight of the controlled substance (hashish) being used to bump that charge up to first-degree felony levels? Really?

If the feds can do it ...
Now that DOJ has told the FBI, DEA, and other federal investigators to begin recording custodial interrogations, shouldn't the Texas Legislature follow suit and require it for law enforcement agencies here? The Lege considered such legislation in 2013 and, next spring will have an opportunity to polish off this last, unimplemented recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions.

The era of mass incarceration in America is not over
Regular readers know we're seeing declining incarceration rates in Texas, like many other large states, but most American states have seen incarceration increase over the last decade, judging from these data.

Naming the new Travis DA's office
Travis County is trying to decide an eponym for a new building that will house the District Attorney's office. Some are saying "Ronnie Earle," but I think it should be named after Richard Danziger. Or perhaps, in light of the current DA's recent history, the "Happy Hour Tower." Offer up your own suggestions in the comments.

Anatomy of a false confession

At the Austin Chronicle, Jordan Smith has an excellent, extended story on an Austin case involving a husband who falsely confessed to murdering his wife, only to have DNA exculpate him. The whole article is well worth reading but here's a notable excerpt describing research about how and why false confessions occur:

The problem with false confessions, experts say, is that many people – even people within the criminal justice system – find it hard to comprehend that a person would actually admit to something that he didn't do. But it happens, and not rarely. According to the Innocence Project, 25% of wrongful convictions overturned by DNA evidence involve a false confession. And many of those confessions actually contain details that match the crime – details that were not in the public domain, says Saul Kassin, a social psychologist and expert in false confessions who is a professor at John Jay College of Criminal Justice in New York. The problem is that all of those details are already known to police, and through the process of interrogation those details can, and do, shape a person's confession, with police – purposely or inadvertently – divulging details of the crime.

Once a confession is made, it's incredibly powerful, say Kassin and others who study false confessions and the tactics that lead to them; jurors often consider a confession infallible evidence, he explains, even though research clearly demonstrates that is not always the case. Among the most vulnerable suspects are those actually innocent, Kassin points out – in many ways, innocence is their enemy. "When I ask innocent people, 'First of all, why didn't you lawyer up?' they tilt their head and look at me like I'm crazy ... and say, 'Well, I didn't need a lawyer, I didn't do anything wrong,'" he says. "They volunteer to take lie detector tests, they volunteer their keys, their shoes, their cars, and they just don't apprehend that there is any risk. And their explanation is as simple as, 'I didn't do anything wrong, I have nothing to do with it, I have nothing to fear, I have nothing to hide – in fact, the more they get to know me, the more they'll see that I didn't do it,'" he continues. "People believe in the transparency of their innocence."

The problem can be compounded by the fact that police generally believe they have a good sense for determining which of the people they encounter during an investigation should be elevated to suspect status. In fact, according to research done by both Kassin and by Iowa State University psychology professor Christian Meissner and others, police are actually no better at determining who is lying to them than are untrained laypeople. Indeed, some of the signs police are trained to believe indicate deception, and techniques they're taught to use in interrogations, may negatively impact their ability to determine lies from truth.

The dominant method of interrogation used in the U.S. is known as the Reid Technique, named after its originator, former Chicago cop John Reid. It's an adversarial and persuasive technique designed to yield compliance from suspects – police are taught to assess in a first interview whether a person should be considered a suspect and then, once that determination is made, to not allow the suspect any ability to deny their involvement in the crime. "It is an excellent ... psychological approach to getting confessions from criminals," Kassin says. "I think the problem begins with this. I always say this: If every person interrogated was the criminal, the Reid Technique would be perfect. The problem is [police] often bring innocent people into the interrogation room." (In fact, during one early use of the technique by Reid himself, a false confession was extracted from a man whose wife had been murdered; it took more than five decades for the man to be exonerated.)

Police have long been taught, for example, that nonverbal cues, like hair touching, leg bouncing, and shifting eye movements, indicate deception. The research says otherwise. "These things ... are in the folklore of police training," says Meissner, but "there is plenty of research to show that they're not reliable." Also problematic are techniques police are allowed to use inside the interrogation room – including techniques that "manipulate the perception of consequences," says Melissa Russano, a professor of criminal justice at Roger Williams Univer­si­ty. Specifically including lying to a person about evidence – saying that a fingerprint or DNA ties a person to a crime, when in fact no such evidence exists – or implying leniency, "stressing the importance of cooperation [with police] ... [suggesting] if you cooperate, things will be better for you and if you don't, things are going to get worse," Russano details.

Taken together, investigation detail leakage, faulty assumptions about who is lying, and heavy-handed, perception-altering interrogation tactics increase the likelihood of a false confession.

According to Russano, current research reflects that the heavy-handed tactics traditionally taught to police investigators are less effective and riskier than more information-based approaches, in which detectives use investigative interviewing and rapport-building techniques – open-ended questioning, timeline-building, and fact-checking. "Really, the science is showing that it's about how people tell their stories and how they remember events" that can reveal whether a person is lying, says Meisser. "It's about the cognitive properties of how they tell their stories that tend to be very important." This less adversarial approach is widely used elsewhere in the world, but U.S. police retain their decades-old reliance on the abrasive, unscientific, old-school approach.

Regardless of the technique, however, each confession should be tested for reliability by seeking corroborating evidence. And the very best form of corroboration, says Kassin, is when a suspect provides a detail or fact that police did not already know. "So, if he leads the police to the body, or to the murder weapon, or to whatever was stolen, that is gold-standard, corroborated evidence."

Of a half-dozen recommendations by the Timothy Cole Advisory Panel on Wrongful Convictions, the last one the Texas Legislature has not yet acted on is a requirement to record custodial police interrogations in serious cases. One hopes that this case and other examples of coercive interrogation techniques will spur the Legislature to rectify that oversight when the 84th session convenes in 2015.

Jury: Coercive interrogation, false arrest violated rights of innocent woman accused of murder

Hephzibah Olivia Lord won her false arrest lawsuit against Dallas Detective Dwayne Thompson three years after she was arrested and later released on a murder charge when her boyfriend committed suicide, the Dallas Morning News reported. The jury concluded Thompson, a detective prominently featured on A&E's reality TV show, The First 48, acted with malice after viewing a tape of an interrogation where he flew into a profanity-laced rage. Reported the News' Kevin Krause (Jan. 17):

Thompson and his murder cases have been featured prominently on the popular A&E reality show The First 48. The show’s premise is that officers’ chances of solving a murder are “cut in half if they don’t get a lead within the first 48 hours.”

Thompson, a former Army captain who served in Saudi Arabia during Operation Desert Storm, was suspicious of Lord almost from the beginning. She alleged in her lawsuit, filed almost three years ago, that he lied about certain evidence while ignoring other evidence that was favorable to her.

One of Thompson’s former colleagues in the homicide unit testified against him during the trial. Kim Sanders, who retired from the Police Department in 2008 after more than 30 years, told the jury he believed Lord was innocent based on his review of the evidence. He also questioned Thompson’s tactics while questioning Lord shortly after her boyfriend died.

In a video of the interrogation, Thompson asks Lord basic questions about what happened that night. He then explodes without warning into a rage and screams accusations at Lord, telling her over and over that she is lying and that he knows she killed Burnside.

During one of the more dramatic moments of the trial, Thompson’s lawyer acknowledged fearing that the jury could be swayed by a video of that intense interrogation. The lawyer, Jason Schuette, looked at Lord and told her he didn’t think she killed Burnside.

About the interrogation, Sanders said the interview amounted to intimidation and called the tone and line of questioning a “formula for a false confession.”

[Lord's lawyer Don] Tittle told jurors during his closing arguments that a verdict for his client would curb police abuses and reduce the chances of someone being arrested for murder when the evidence isn’t there.

As Grits noted on Wednesday, to me it wasn't just Thompson on trial but the Reid technique of interrogation, whose central tenets were on display in Lord's interrogation video: Intimidation, accusation, psychological manipulation, lying about evidence, cutting off denials ... these methods are taught to police interrogators across the country and, as Mr. Sanders told the jury, amount to a "formula for a false confession."

The Reid technique was developed to fill a void in the years after "third-degree" interrogation tactics were banned, using psychological manipulation rather than physical force to coerce interrogations but based on a similar approach. The US Supreme Court's famous Miranda warning was instituted in part as a (insufficient) buttress against the method's coercive tactics.

Ironically, one of the most prominent cases on which Det. John Reid, its creator who built a consulting empire around the approach, built his reputation in the 1950s resulted in a false confession that wasn't exposed until the poor forester, Darrel Parker, was exonerated and released in 1991. "In August 2012, the state of Nebraska issued a declaration of innocence to Parker and agreed to pay him $500,000. Attorney General Jon Bruning publicly declared that Parker was wrongly convicted and apologized."

In the U.K. and several other countries, the Reid technique has been abandoned in favor of a less confrontational method focused more on gathering information than extracting a confession. Dubbed the PEACE technique, the name is a mnemonic for Preparation and Planning; Engage and Explain; Account, Clarify and Challenge; Closure; and Evaluation. In the United States, though, the Reid method reigns supreme.

One reason police have resisted requirements to record interrogations - despite the superior evidential value of recordings in court - is that Reid methods often appear coercive and prejudicial to an outside viewer. That's because they are. When they're employed against a guilty suspect, people don't tend to care. But when they're employed against the innocent, they undermine the credibility of the investigation and the investigator. And in the case of Hephzibah Olivia Lord, a Dallas jury decided that, coupled with her false arrest, it violated her civil rights.

RELATED: From Texas Monthly, "How to get a teenager to admit to a crime he didn't commit."

How Dallas cops are trained to interrogate suspects

At the Dallas News, Kevin Krause has a story ("Dallas detective defends investigation of woman later cleared in murder," Jan. 14) on a false arrest lawsuit against Dallas Detective Dwayne Thompson, brought by a woman named Hephzibah Olivia Lord who was arrested and later released on a murder charge after her boyfriend committed suicide. This bit jumped out at me:

Thompson also defended his aggressive interrogation of Lord several hours after the death. Jurors watched a video of the session during which he shouted profanity-laced accusations at Lord while working himself into a rage. Thompson said he employed techniques that he had learned during training, one of which is to directly accuse someone of a crime to see how they react.

“As unpleasant as it is, you have to make every attempt to arrive at what happened,” he testified.

But that interview, while revealing some inconsistencies, yielded no strong evidence of murder, Thompson said.

Lord did not crater under such "questioning." But some folks do, including innocent ones. (Ask Christopher Ochoa.) Thompson is almost certainly correct that he was trained to behave that way - it's a significant cause of false confessions and a method central to the so-called "Reid technique," which is the basis for nearly all police interrogation training in America. (See here, here, here, here, and here.) But does it really help to shout "profanity-laced accusations" while working oneself "into a rage" when there's a good chance the person is innocent (and legally are presumed to be)? Should that really be a routine part of police investigation?

There are alternatives to the Reid technique, but it's hard to blame officers for following their training. It's much harder, though, to understand why officers are still trained to behave that way.

MORE: An alert reader pointed out that Tod Robberson beat me to the punch on this topic yesterday at the Dallas Morning News Opinion Blog. Concluded Robberson:

These tactics reflect an outdated way of eliciting false confessions and justify why all such interrogations must be recorded. I don’t know what it is about some detectives, sheriffs and headstrong prosecutors who think that the goal is to win a confession and/or prosecution no matter what, and regardless of whether the person charged is guilty or not. That’s how Michael Morton wound up spending 25 years in prison for a murder he did not commit. That’s how Christopher Scott spent 12 years in prison for a murder he did not commit. Both faced these aggressive, brutal interrogation tactics by overly eager law enforcers who refused to look at the evidence first before charging ahead with their assumption of guilt.

I hope Lord wins her current lawsuit against Thompson, because it’ll send a message to law enforcers everywhere that these tactics have to stop.

AND MORE: From Robberson. AND MORE: Kevin Krause reports on a former Dallas homicide cop named Kim Sanders, a 30-year veteran, who testified for the plaintiff at the trial. Here's a notable excerpt:

Sanders testified that he reviewed evidence in the case and that the Burnside death looked like a self-inflicted accidental shooting or a suicide.

Sanders also said he was shocked by how Thompson treated Lord during her interrogation.

Thompson shouted accusations at Lord in a booming voice, using profanity and whipping himself into a rage. He defended his actions during the trial, saying he was using acceptable methods that he learned during training.

“This went beyond anything I’ve ever seen,” Sanders said during testimony.
He said you can’t intimidate someone into saying something, and he called it a “formula for a false confession.”

But Thompson said it was one of three interview techniques he learned from the Federal Law Enforcement Training Center.

Long delay by CCA in El Paso false confession case

The HuffPost Crime Blog had an article this week profiling a habeas corpus writ involving an alleged false confession case out of El Paso that the Court of Criminal Appeals has been sitting on for nearly a year and a half. The story opened:

Is Daniel Villegas innocent?

According to a district judge, at least 18 alibi witnesses, the jury foreman, one of his alleged shooting victims, the former mayor of El Paso and a local businessman who has turned into his most vocal advocate, the answer is an unequivocal yes.

Daniel Villegas, 36, is serving a life sentence for the shooting deaths of teens Armando "Mando" Lazo, 18, and Robert England, 17, in Northeast El Paso. He has been incarcerated since 1995.

Villegas, who was 16 at the time of the killings, confessed, but claimed immediately after he was separated from then-El Paso police Detective Al Marquez that the confession was aggressively coerced.

According to the HuffPost article:

In August 2012, Judge Medrano ruled that Villegas' confession was coerced -- something that Villegas communicated to juvenile officers immediately following his removal from the custody of Detective Marquez.

"For our justice system to work it must make two important promises to its citizens: A fundamentally fair trial and an accurate result," Judge Medrano told a courtroom. "If either of these two promises are not kept, our system loses its credibility, our citizens lose their faith and confidence in our court system, and eventually our decisions and laws become meaningless."

This summer, supporters of Daniel Villegas marched on the Capitol a year to the day of Medrano's ruling, hoping to get the Texas Court of Criminal Appeals to address Villegas' case. Supporters included former El Paso Mayor John Cook, who said he believed Villegas should be granted a new trial, as well as several former death row inmates who lived to be vindicated.

But the appellate court has not so much as set a hearing.

Ironically, Villegas rejected a plea bargain for a 10 year sentence in the double homicide because, he said, he didn't believe an innocent person could be convicted in America. That was nearly 20 years ago. Cases like these, Grits has repeatedly maintained, argue strongly for a requirement that police record interrogations, at least in the most serious cases. But in this case, even the version of the confession obtained by police doesn't match up with other facts in evidence, according to the judge's findings and published reports. I have no idea why the Court of Criminal Appeals has waited to long to confirm or reject the district judge's ruling, but it sure seems like it's time for them to get on the stick.

The upsides of recording custodial police interrogations

Regular readers know that requiring police to record custodial interrogations, especially in the most serious cases, is the final recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Legislature has yet to implement. The Crime Report this week published a good overview of the hows and whys of the issue, noting that the International Association of Police Chiefs has embraced the idea:

The International Association of Chiefs of Police has made wrongful convictions a priority. A recent article from Police Chief Magazine reported that the best practices to avoid false confession include recording the entirety of interrogations, and keeping secret some crime details to ensure innocent suspects do not just parrot back inside information gleaned from their interrogators.

Richard Leo, an academic who has been doing empirical research on police interrogation practices for 20 years and is a frequent expert witness in cases involving false confessions, said he is seeing a growing movement nationally to record confessions.

Leo said the movement has developed because of greater understanding of what causes false confessions. He listed, for example: 

• lying to suspects about the evidence against them;
• the length of interrogations;
• the propensity of people to comply with authority;
• mental illness or low intelligence;
• and implications from police interrogators that if a suspect makes an admission, he is “not admitting to a crime or admitting to something that has very serious consequences.”

Not only does recording interrogations help prevent false convictions (or at least identify them after the fact), it also provides better evidence for prosecutors and juries, prevents he-said she-said disputes about what went on in interrogation rooms, serves as a buffer against police misconduct, and prevents false accusations against police interrogators. “I think that police officers and prosecutors, properly trained, could do this and do it well,” said a prosecutor quoted in the story. “It would just enhance the cases and take away a lot of the arguments about coercion and force and things of that nature.”

One hopes the Texas Legislature will prioritize this issue when it re-convenes for its 84th session in 2015.

See related Grits posts:

• Shaky science, un-recorded confession lie form basis of El Paso habeas writ
• El Paso case highlights need for recording interrogations
• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Shaky science, un-recorded confession form basis of El Paso habeas writ

Jordan Smith at the Austin Chronicle has an excellent new story out ("Science goes to court," Nov. 1) regarding a habeas writ challenging a child-murder conviction out of El Paso. The defendant is seeking relief based on Texas' new law, authored this year by state Sen. John Whitmire and Rep. Sylvester Turner, allowing relief when new scientific developments contradict expert testimony at trial. (In this interest of full disclosure, this was legislation your correspondent helped promote on behalf of my employers at the Innocence Project of Texas.)

As is likely to be the case in much of the litigation surrounding this new habeas provision, the debate centers on whether the defendant's writ relies on new science or evidence that should have been available at the time of trial - in this case biomechanical modeling that has debunked many of the underlying premises of "shaken baby syndrome" and other expert testimony about child trauma. Wrote Smith:

Biomechanics has long been relied on for injury prevention and repair – the development of air bags in vehicles, of helmets to protect football players' heads, of replacement hips and knees – but only recently has biomechanics been incorporated into a criminal law context, to describe with scientific certainty the force needed to cause specific injury. Biomechanical engineering is pivotal to the reconsideration of cases of so-called "shaken baby syndrome," or SBS, and has demonstrated that simple shaking by an adult cannot create the force necessary to kill a child.

"Many if not most non-physicians assume that physicians, skilled in the art of medicine, must have particular knowledge of injury mechanisms. This assumption is wrong," John Plunkett, a veteran pathologist and expert in the diagnosis of child injuries who has been a vocal critic of SBS, wrote in an affidavit filed along with a new appeal in Avila's case. For the most part, physicians, such as Raschbaum, "need not know or apply injury mechanics if they are responsible for diagnosis and treatment," Plunkett continued. "However, if a physician ventures from diagnosis and treatment to speculation of the ultimate force, stress, or energy required to cause injury, he/she must understand mechanics ... and perform or refer to the appropriate experiments."

At the time of [Rigoberto] Avila's trial, and first appeals, biomechanics was not being applied to criminal cases involving child abdominal injuries, a leading cause of death in children, Plunkett and other experts say. Now, Plunkett wrote, such an analysis prior to deciding whether an injury is criminal or not would be "mandatory."

The argument that Avila's conviction was based on faulty, pseudo-scientific conclusions is at the heart of a new appeal filed in September. The appeal cites passage this spring by state lawmakers of Texas' first-in-the-nation law to allow for appeals based upon relevant and newly ascertainable, or evolved, science that contradicts evidence used at trial. The new statute took effect Sept. 1, and is an acknowledgment that criminal law – rigid and, importantly, wedded to finality – must evolve to keep pace with scientific advances.

The principal dispute, Smith reported, surrounds whether biomechanical research regarding child trauma is new science or merely old science re-packaged:

El Paso District Attorney Jaime Esparza does not agree that Avila's case falls under the new law. In a motion filed in October on Esparza's behalf, prosecutor Tom Darnold argues that there is nothing new about the science involved in the case that would warrant review. "Avila acknowledges that the relevant scientific knowledge, that is, the physics of impacts, dates back to Newton and has not undergone significant change since Avila filed his first writ application" 10 years ago, reads a motion to dismiss the case. And even "Reimann notes [in his affidavit] that his analysis of these types of issues is 'based on introductory physics normally presented in a general physics course required for biological, health-science, and pre-med students,'" Darnold noted. As such, the "materials Avila has submitted ... defeat his claim that the scientific knowledge, or the method on which that relevant scientific knowledge is based, has changed since the time he filed his first writ application." And the fact that biomechanics was understood and practiced at the time Avila was tried means only that his lawyers didn't exercise "reasonable diligence" in seeking out that knowledge to present at trial. The plain language of the new law, he notes, "does not authorize the consideration of the merits of a subsequent writ ... based on scientific knowledge that was previously available but not commonly used, or based on scientific knowledge that was previously available but simply was not sought out by the doctors or attorneys in the case."

While it's true that biomechanics takes basic Newtonian physics – the law of bodies in motion – and applies it to living tissues, there is nothing at all static about the science involved, says Peter Stephens, a retired forensic pathologist. And when he hears people dismiss the science as not new or say something like, "'We've moved beyond Newtonian physics now,' most of us just roll our eyes." The fact of the matter, says Stephens, is that using biomechanics as a diagnostic tool for childhood injury is fairly cutting-edge – particularly when it comes to assessing abdominal injuries, like that which ultimately killed Nicholas.

The whole "shaken baby syndrome" (SBS) fiasco - where a field of expert testimony arose in the 1970s to prosecute cases without the underlying science having been tested (see background here) - was one of the brands of junk science under consideration when this new legislation was passed. Grits has no direct knowledge about when new biomechanical modeling that debunked SBS was applied to other types of injuries like the ones in this case. But the idea that the claim should be denied because the physics of impacts "dates back to Newton" is a laughable stance that ignores the history of SBS and the belated rise of biomechanical modeling that has only recently countered it.

Indeed, later this month in Dallas a "World Conference on Infant Head Trauma" will convene to evaluate the evolving status of science in this area. According to the event's website, "The World Congress on Infant Head Trauma brings together international speakers to find common ground and debate controversial topics in pediatric forensic pathology. This unique congress focuses primarily on the pathology and etiology of head trauma (and its mimics) and not the overarching issue of child abuse." This is still very much an evolving field.

In the wake of the new law, not to mention the National Academy of Sciences report in 2009 calling into question an array of non-scientific forensics, we're going to see more habeas writs focused on the question of "what did science know and when did it know it?" That's as it should be.

The case also highlights the drawbacks of failing to record custodial police interrogations. (Regular readers will recall that requiring such interrogations to be recorded is the final, un-enacted recommendation of Texas' Timothy Cole Advisory Panel on Wrongful Convictions.) Here's how Smith described the circumstances of the disputed confession:

Around 11pm that night, as Raschbaum worked on Nicholas [the child victim] at the hospital, Avila was taken to the El Paso PD to give a statement to Det. Tony Tabullo, then a 24-year veteran of the force. Avila was already a suspect in the case, and around 11:30pm Tabullo advised him of his rights before beginning the interview. At roughly 2:10am, Avila signed a statement wherein he detailed that he had been watching TV when Dylan told him that Nicholas wasn't breathing; per Tabullo's instructions, Avila read and placed his initials before and after each paragraph of the statement, and next to the time and date – 23 separate places in all – before signing off on the document.

What happened next is disputed. Accord­ing to Tabullo, after he took Avila's statement he found out that Polaroid photos of Nicholas' body had been brought to the police station. Those photos, he testified, revealed a large area of bruising across Nicholas' chest (the bruised area was seven inches by three inches, according to the autopsy report) that resembled a shoe print. Armed with this information, Tabullo said, he returned to Avila and confronted him with what he considered evidence that Avila had stomped on the baby's chest. Tabullo asked Avila if he could see his shoe; Avila complied. "Well, I asked him," after inspecting Avila's sneaker, "do you want to tell me the truth?" Tabullo testified. "He said yes. He shed a few tears and started telling me the truth."

The truth, according to a second statement Tabullo said Avila offered, hours later, at 5:46am, was that while Avila was watching the basketball game at Macias' apartment he got up and went to the bedroom where Nicholas was alone. "I saw him laying on the floor," reads the second statement. "I don't know what came over me, but I walked over to him and stamped on him with my right foot." Avila then allegedly picked Nicholas up and brought him into the living room where Dylan shook Nicholas to try to "wake him up" and then hit him on the chest with a magazine. Avila called 911. Why had he done it? According to the second statement, it was because he was "jealous" that Macias paid so much attention to the toddler.

According to Avila, Tabullo fabricated that second statement. He said that when Tabullo returned to the interview room where he'd been left after making his first statement, Tabullo confronted him with the photos of the alleged shoe-print bruise. Avila said he knew nothing about the injury, he testified in court. Tabullo told Avila he would have to wait a while longer in an interview room. Tired, Avila asked if he could leave; no, not until Tabullo was "done with you," he testified. Avila was tired and was falling asleep as they talked, he recalled. "I said, 'Is it okay if I go to sleep,' and he says, 'Yes,'" Avila testified. "He goes, 'I just need to make some changes on the statement.' He says, 'If you want ... I'll wake you up when I'm done.'" And that, said Avila, is what he did. When Tabullo woke him up later, Avila said, he was told only that he needed to sign his statement again, and that he could then leave. Avila says he did as he was told – without ever reading the new statement. He was then arrested.

Although there is certainly reason to suspect the validity of the second statement – it was conducted by Tabullo alone and was not recorded, and unlike the first statement, Avila did not initial any of the paragraphs, though Tabullo said that's because Avila told him that he trusted the detective and didn't need to go through that – the damage was done.

How much better would it have been for everyone if Avila's interrogation had been recorded? Without a recording no one besides the two men involved can know for sure what happened in that interrogation room. One of them is lying and it's impossible to know who. Maybe in 2015 the Texas Legislature will finish the tasks assigned it by the Tim Cole panel and finally require recording of custodial interrogations. Otherwise, there's little doubt similar situations will continue to arise, calling convictions into question and muddying the waters for appellate courts trying to suss out the mess after the fact.

Lege slowly but surely plowing through Tim Cole Advisory Panel recommendations

One has to give the Texas Legislature credit where it's due.

The Timothy Cole Advisory Panel on Wrongful Convictions was a one-time task force charged with making recommendations to reduce false convictions in the wake of the posthumous exoneration of Tim Cole as well as dozens of other Texas men declared innocent of serious felonies after post-conviction DNA testing. See their report (pdf). One often hears that panel made eleven recommendations, but really it was fewer than that. For example, five of them related to eyewitness identification standards, all of which were addressed in just one bill. Consolidated, the group effectively proposed six different legislative solutions:

• Eyewitness ID reform
• Recording custodial interrogations
• Discovery reform
• Expand access to post-conviction DNA testing
• Clarify standard for adjudicating junk-science habeas claims
• Fund staff at law-school innocence clinics instead of an innocence commission

Remarkably, with the passage of discovery reform and Sen. Whitmire's legislation allowing habeas relief in junk-science cases, after this session, to its credit, the Texas Legislature will have approved five of the six major recommendations of the Tim Cole Advisory Panel. Some may have been in more watered down forms than Grits might have preferred but still, that's not a bad record.

Assuming Governor Perry approves these latest bills - and he's been supportive of past legislation based on Tim Cole Advisory Panel recommendations - the final major unresolved item from the list for next session will be requiring police to record interrogations in the most serious offenses. This year a bill to that effect was voted out of the House Criminal Jurisprudence Committee but, like a great deal of criminal-justice reform legislation, never received a vote on the House floor. The police chiefs' association says smaller departments can't afford it and until now my response has been that if they can't afford a recording device the department isn't big enough to handle rape and murder investigations. But that argument hasn't moved the needle so next session I've got my eye on a pot of untapped money that could perhaps be used for one-time recording equipment purchases, in much the same way the state used bond money to pay for dashcams in local police cars back in 2001. Recording equipment is cheap these days, it wouldn't take much.

Still, considering the Legislature created the Tim Cole Advisory Panel in 2009 (the same year it increased compensation for exonerees to become the most generous in the nation) and this is only the second session since its recommendations came out, five out of six isn't a bad ratio. There's more to be done, no doubt, and these measures represent modest first steps toward reform, not its culmination. But to outline half a dozen significant legislative suggestions and see five of them enacted in just two sessions is pretty darn impressive.

Good House bills deserve floor votes as session's end draws near

There's very little time left for bills in the Texas House of Representatives to receive votes on the House floor before deadlines next week close off their chances to become law. There are several bills presently sitting in the Calendars Committee that I'm especially hopeful may make it onto the list to receive votes before the bell tolls on hundreds of House bills next week:

• HB 1608 by Hughes requiring government to obtain a warrant to obtain personal cell phone data,
• HB 1096 by Canales requiring law enforcement to record custodial interrogations for the most serious offenses, and 
• HB 104 by Gonzales abolishing the Driver Responsibility Surcharge for two years while the Legislature and stakeholders look for alternative trauma hospital funding.

Hughes' bill has broad bipartisan support from 108 House members, including eleven members of the Calendars Committee; if that level of support can't secure a floor vote I don't know what it will take. Canales' legislation is a key priority of my employers at the Innocence Project of Texas and one of the last few recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions that the Legislature has yet to implement. And Gonzales' bill is a bipartisan effort to correct what's arguably the worst public-policy error by the Texas Legislature in the 21st century (which is saying something) - repealing a statute which even the original bill authors agree was a mistake that needs to be eliminated. (See more on HB 104 from Paul Kennedy.)

All of these bills deserve a place on one of the final calendars of the session when the House can approve House bills.

Relatedly, Grits had earlier recommended several additional bills for House floor votes and I'm pleased to see one of them, HB 990 by Thompson, which would authorize creation of a state sentencing commission, was placed on Saturday's calendar. (There are also a number of prefiled amendments aimed at the TDCJ Sunset bill which will be heard that day.) A pair of drug-reform bills Grits favors, though, CSHB 184 and HB 2914, continue to linger in the Calendars Committee and deserve floor votes. And I'd like to see the House vote on HB 1790 by Longoria which would provide positive incentives for probationers to succeed in addition to merely threatening revocation for failure. There's still time left to pass substantive criminal-justice reform legislation this session, but not much.

UPDATE (5/4): HB 1790 has been posted for a vote on Tuesday's House floor calendar, as has HB 912, known universally as "the drone bill." There are two more calendars yet to be published on which the other bills could still be added.

El Paso case highlights need for recording custodial interrogations

Rep. Terry Canales' HB 1096 requiring law enforcement to record custodial confession in the most serious cases passed out of the Texas House Criminal Jurisprudence Committee yesterday. Then, as if on cue, reporter Jordan Smith has published a story in The Nation this week describing an apparent false confession case out of El Paso. In 1993, Daniel Villegas was arrested for a drive-by shooting. Wrote Smith:

Villegas insisted he had nothing to do with the crime and said he was with a group of friends—who were babysitting and watching the movie White Men Can't Jump—when the shooting occurred.

Yet, hours after he was brought in for questioning, just before 3AM, Villegas made a statement confessing to the crime. The confession alone would be enough to send Villegas to prison for life.

But 19 years later, in August 2012, El Paso County District Judge Sam Medrano declared that Villegas, who is now 35, should be given a new trial. The confession obtained by Detective Alfonso Marquez was coerced, he ruled, and the court-appointed attorney who represented Villegas at trial was severely ineffective. “For our justice system to work it must make two important promises to its citizens: A fundamentally fair trial and an accurate result,” Medrano told a packed courtroom on the morning of August 16. “If either of these two promises are not kept, our system loses its credibility, our citizens lose their faith and confidence in our court system, and eventually our decisions and laws become meaningless.”

El Paso prosecutors have pushed back against the court’s ruling, filing objections to Medrano's findings and urging the state's highest criminal court, the Texas Court of Criminal Appeals—known to be fond of finality rather than a stickler for certainty—to affirm Villegas' conviction. Villegas, in the meantime, remains behind bars. Whether he will get a new day in court is now in the CCA’s hands.

Villegas' case remains a potent example of the insidious problem of false confessions, the incomplete or sloppy police work that often accompanies them, and the damage done by defense attorneys who fail to investigate or to defend their clients—in Villegas' case, a story that has almost certainly landed the wrong person in prison while a killer remains unpunished for his deeds.

Villegas was a juvenile, interrogated for hours late into the night, and got many facts wrong in his recitation of events, from where he shot the victim (in the back, he said, but in reality it was the front) to what sort of gun he used (Villegas said he used a shotgun; it was a .22 caliber pistol) and what kind of car he was in (he said a white sedan; witnesses said it was maroon). Then in 2011, in response to billboards placed around town asking for help, a witness came forward who saw the shooting and named the alleged real culprits, two brothers who police had questioned about the shootings but stopped pursuing after Villlegas' confession. One is now dead, the other is in federal prison on drug trafficking charges. The latter man was called to testify at Villegas' habeas corpus hearing but took the Fifth, refusing to testify because his testimony might tend to incriminate him. Remarkably, he did testify that the DA's office had never interviewed him in preparation for the habeas hearing.

Often false convictions stem from a confluence of error as opposed to a single, well-defined cause and  Villegas' case is no exception, combining pretty blatant ineffective assistance of counsel with the apparent false confession. Wrote Smith:

Villegas was actually tried twice for the deaths of Lazo and England. The first time he was represented by a hired attorney who fought hard to counter the state’s case, which was—and remains—built solidly on the confession obtained by Detective Marquez. That trial ended in a hung jury. The state decided to give it another go, but by this time, the Villegas family no longer had money to pay for a defense lawyer, says Mimbela. Although the original attorney offered to continue on, the trial judge refused, appointing an entirely new attorney, John Gates, just sixty days before the retrial.

To say that things did not go well the second time around is an understatement: Gates failed to call any of Villegas' alibi witnesses. In fact, according to veteran criminal defense attorney Joe Spencer, Villegas' current attorney—hired by [John] Mimbela—Gates failed to do anything more to prepare for the case than to read over the transcripts of the first trial. He then failed to do anything with the evidence the transcripts provided.

HB 1096, which if in place at the time would have required Villegas' entire interrogation to be recorded instead of only his confession statement,  is one of two bills moving this session implementing key recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions. Now the bill heads to the House Calendars Committee which so far has been extremely picky about which bills it's been posting for floor votes. This legislation, however, deserves an up or down vote by the full House sooner than later.

See related Grits posts:

• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions