November Reasonably Suspicious Podcast: Let me be your lawyer dog, or I won't be your man at all ...

Check out the November edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. We're coming out a little early this month to keep things on the right side of the Thanksgiving holiday. You can listen to the latest episode here, or access it on all the usual channels: 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 go-round include:

Top Stories

• The Louisiana Supreme Court said a man who told police "Why don't you just give me a lawyer, dawg?" wasn't really asking for a lawyer. But this is common. A recent Texas case denied an attorney on the same basis.
• Risk assessments have come under fire from liberals for generating racial disparities. What are the implications for using them as part of Harris County bail reform?

Game Segment: Tea Leaf Reading
Looking forward to criminal-justice-related interim charges at the Texas Legislature.

• Appropriate treatment, services to offenders aged 17-25 to reduce recidivism, future crime. (See an earlier podcast segment on the topic.)
• Ineffective Assistance of Counsel: Front-end and back-end solutions.

Death and Texas

• US Supreme Court hears oral arguments in Ayestas v. Davis, seeking funds for investigation into an ineffective assistance claim.
• A state district court considers Ex Parte Flores in which the key eyewitness was subjected to hypnosis before changing her ID of the suspect. She at first told police the suspect was a white man with long hair. Mr. Flores is an Hispanic man with short hair.

The Last Hurrah
Rapid fire quick takes:

• USDOJ deleted 70% of tables from the newest edition of the national Uniform Crime Reports.
• A new study says police bodycams haven't changed police behavior. Why is that?
• Rent to own furniture companies as modern debtors prisons.

"Lawyer dog" incident hardly unique; judges like loopholes that deny counsel

Recently, the Louisiana Supreme Court made national headlines by ruling 8-1 that a defendant who said, "Why don't you just give me a lawyer, dog?" wasn't really asking for a lawyer.

In the same vein, Texas 14th Court of Appeals in Texas ruled on October 31st that a defendant who said he wanted to call his sister to ask her to get him a lawyer also didn't unambiguously say he wanted a lawyer. In part, that's because the detective kept interrupting him to keep him from being more explicit! And at the end of the day, the ploy worked! The appellate court said the defendant's desire for representation was insufficiently explicit to be binding, even though it's obvious to any sentient person he wanted an attorney because it was "the only option I have."

This garbage has been going on as long as I've been around the criminal-justice arena and it's indefensible. When someone says they want a lawyer, cops should stop questioning them until they get one. Instead, they look for loopholes to argue that's not what the defendant really meant, and, since judges are reluctant both to throw out confessions or to make counties pay for counsel when defendants are indigent, they routinely allow those sorts of legalistic workarounds. It's bullshit, but the practice is as common as pine trees in East Texas.

Crime lab misconduct, sex-offender residency, parole successses, and other stories

Hope you enjoyed a Happy Independence Day, Grits readers. Here are several items that didn't make it into independent posts last week but merit your attention:

Houston crime lab misconduct not caught by internal procedures
The Houston Chronicle reported (June 25) that Peter Lentz, the Houston crime lab tech accused of lying, improper procedure and tampering with an official record, was not identified by internal protocols but because, in February, he admitted the wrongdoing to two coworkers over drinks in a bar. MORE: From Paul Kennedy.

Texas civil commitment program melting down
The state's civil commitment program for sex offenders is imploding. The state plans to begin housing sex offenders in secure lockups because a halfway-house vendor is dropping its contract, citing public stigma and inadequate compensation. An attorney at the Harris County public defender told the Houston Chronicle that housing civil-commitment offenders in secure lockups is "clearly illegal." After all, they've already served their criminal sentences and are legally supposed to be undergoing outpatient treatment. Look for significant action on this topic next session, probably led by Sen. John Whitmire and Rep. Sylvester Turner.

'Getting Life': Michael Morton Memoir
Michael Morton has just published a memoir about his false conviction and imprisonment for the murder of his wife and the dramatic events surrounding his nationally publicized exoneration. See the Statesman's coverage.

Higher parole rate, fewer revocations account for leveling of Texas' prison pop
Insiders know that, despite the attention paid to Texas' 2007 probation reforms, the parole side has been the main reason Texas' prison population has leveled off and even modestly declined in recent years. Why? Via YourHouston News, Texas parole commissioner Lynn Ruzicka said new programming has facilitated higher parole rates for eligible inmates and lower revocation rates for parolees. For example, "Out of the inmates up for parole, 27-28 percent were released in 2001 while the current release rate hovers around 35 percent ... A 2 percent increase in approvals translates into approximately 1,500 additional parole releases per year and an annual savings of almost $26 million, a 2010 report by the Center for Effective Justice showed." Ruzicka specifically said, “The release rate is going up because of the programs we have.” Further, "parole revocation rates for parolees with active cases fell from 12.2 percent in 2001 to 8.2 percent in 2010, according to the Texas Department of Criminal Justice."

A lawyerly protest: Handing out cards
You don't see this every day:

More than a dozen of the city's best criminal defense lawyers converged Friday on the 11th floor of Houston's criminal courthouse to meet defendants and hand out bright yellow 3-by-5 cards explaining their constitutional rights.

It was part of a protest by the Harris County Criminal Lawyers Association against the way Michael Fields, a misdemeanor judge, handles initial appearances in his court.

"What he's doing is unethical, it's unconstitutional and it's illegal," HCCLA president Carmen Roe said after passing out several fliers. "When he starts trampling on the rights of defendants, that's when we get involved." ...

"We believe he's coercing defendants to either waive their right to a lawyer or enter a plea of guilty without their lawyer being present," said JoAnne Musick, a past president of HCCLA who was handing out fliers. "We've had complaints from people who asked for a lawyer and instead he handed them plea papers and had them enter a plea of guilty."

The judge, who denied any improprieties, said he changed his arraignment procedure earlier this year, a move that has generated the controversy. The Republican jurist has held the bench since being elected in 1998.

Paul Kennedy has called Judge Fields a "bully in a robe." Scott Greenfield provides more suitably outraged commentary.

Are compromised Van Zandt locks in other jails?
The Tyler Morning Telegraph posed the same question Grits asked in the wake of news about inmates compromising the locks at the Van Zandt County Jail: "Are the faulty locks in the Van Zandt County Jail in other jails?" For now, claims the paper, the surprising answer appears to be "no." "Executive Director of the Texas Commission on Jail Standards Brandon Wood said that as of now, the manufacturer does not seem to have that lock model in any other Texas jails, but they are still taking more time to confirm that, and see about locks in other states."

Wood said there are about three main manufacturers that make lock systems for jails in the state, but the company that made the flawed locks was not one of them.

“The type of lock that was installed, although it is comparable according to the manufacturers specifications to locks that are typically seen in Texas county jails, this was the first time we’d seen this manufacturer in the state,” Wood said.

Wood said even though the company was new, the locks it made met state standards.

For security reasons, Ray requested not to reveal the lock manufacturer’s name. Keeping that information away from inmates could stop them from trying to manipulate similar locks.

However, the locks with the faulty pieces seem to only be in one batch of one specific model. It doesn’t look like the manufacturer has locks from that bad batch anywhere else.

“We do not believe that any of those locks are in any other county jails, however we have issued a technical assistance memorandum and notification to the sheriffs to conduct a walkthrough of their own facilities and determine if they have any of those locks,” Wood said.

As every jail in Texas investigates its own locking system, the manufacturer in question is looking into any locks it has installed in other states.

They ought to publish the manufacturer's name. It's going to eventually come out, anyway.

Alleged civil service cheats indicted in Cameron County
Reported AP, "Eleven former and potential South Texas sheriff's deputies have been indicted in a civil service exam cheating scandal involving a cellphone image of the test."

Private prison focus: Immigration
The blog Texas Prison Bidness highlights documented troubles at five "criminal alien requirement" prisons in Texas covered in an ACLU report released earlier this month:

• Reeves County Detention Center
• Eden Detention Center
• Willacy County Correctional Center
• Big Spring Correctional Center
• Giles W. Dalby Correctional Facility

Forensics a 'decades-long experiment' sans scientific method
At Slate, Mark Joseph Stern picks up the meme that much forensic science isn't actually science, an uncomfortable fact made irrefutable by the 2009 National Academy of Sciences report calling for the application of the scientific method in forensic fields. He argues that, "Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches."

Good criminal justice coverage from Texas Observer

There are a couple of interesting stories up at the Texas Observer on topics this blog has covered that merit Grits readers' attention. Check them out:

• Checkpoint Carlitos: Why did DPS set up checkpoints in the Valley?
• Study shows why Houston's Public Defender program is worth the cost

See related, recent Grits posts:

• 'Show me your papers comrade': DPS vehicle checkpoints further degrade Fourth Amendment
• DPS backs of S. Texas roadblocks after dubious justifications debunked
• On the dubious constitutionality of DPS roadblocks
• Harris Co. Public Defender achieves much better results than assigned counsel

MEA CULPA: BTW, after Grits' earlier write-up of the Council of State Governments Justice Center report on the Harris Co. Public Defender program, a couple of people have told me I was remiss not to credit Jessica Tyler as a report author in addition to Tony Fabelo and Carl Reynolds, as apparently she did the bulk of the work on the document. I've never met Ms. Tyler, but if and when I do, the first round is on me. Grits regrets the omission and appreciates her efforts producing the report.

Right to counsel in Texas preceded Gideon by a century

Next Monday, March 18, at the Texas capitol there will be an event celebrating the 50th anniversary of Gideon v. Wainwright, which enshrined the right to legal counsel as a fundamental constitutional right, and on Sunday the New York Times had a story titled, "The Right to Counsel: Badly Battered at 50."

Notably, though, this may be the 50th anniversary of Gideon but not of the "right to counsel," at least in Texas. According to a newly published history (p. 65) Grits is presently reading, the Texas Supreme Court in Calvin v. State (1860) ruled that "the state had a duty to provide counsel for blacks who could not afford their own - a progressive notion that would not be enshrined in federal jurisprudence until more than a century later."

Who'da thought?

SCOTUS: Police can still try to interrogate you after you request a lawyer if they wait 14 days

I should at least mention an important ruling by the US Supreme Court this week that moved the goalposts significantly for defendants regarding police interrogations and the right to counsel. Via SCOTUSBlog,

The Court’s decision [Wednesday] in Maryland v. Shatzer – holding that a suspect’s request for counsel is only valid for fourteen days if the suspect is released from custody during that time – dominates today’s news coverage of the Court. Jesse J. Holland of the Associated Press, Adam Liptak of the New York Times, James Vicini of Reuters, Debra Cassens Weiss of the ABA Journal, Jurist, LA Times, and CNN.com all provide coverage of the case, as does NPR’s Nina Totenberg, whose story on the decision includes analysis by a law professor who describes the fourteen-day rule as “totally arbitrary” but ultimately a “good” one.

See also SCOTUSBlog's opinion recap. At the Volokh Conspiracy, Orin Kerr points out the obvious - that the US Constitution includes no "14-day rule," a number that was pulled out of thin air - and that the majority opinion by Justice Scalia on its face amounts to legislating from the bench. Kerr then gives an excellent, brief rendition of Scalia's 20 years of history on this subject that explains his enthusiasm for such out-of-character judicial dabbling.

I'm not a lawyer so maybe I'm missing something, but I can't help but wonder how this ruling will interact with the Court's Rothgery decision, where SCOTUS said a defendant's "initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." So if a defendant is assigned counsel after that initial appearance but is then released on bail, does that mean two weeks later police can now take another run at the defendant and seek a waiver in order to interrogate them outside the presence of their lawyer? That's how Scalia's opinion reads to me, but such an interpretation seems open to abuse.