Glimpses of the Harris County Jail's dark underbelly

Several remarkable Houston Chronicle articles over the last month about problems at the HPD and Harris County jails develop some particularly unfortunate themes, and demonstrated some impressive team reporting chops:

Calls for training, better cell checks follow Harris County jail suicides (Dec. 1)

Wrote St. John Barned-Smith, "[I]n thousands of pages of autopsy reports and internal disciplinary reports, the Chronicle found 35 instances in which jailers skipped required cell checks or faked records to hide skipping them, a pattern that experts called a serious problem at county jails statewide."

The union says "the jail has never been properly staffed because both county and state leaders don't provide adequate funding. 'We just don't have enough manpower for the number of beds we have in the jail.'"

"Statewide, 154 inmates have killed themselves in county jails since Sept. 1, 2009. Suicides in county jails recently hit a five- year high: 33, up from 22 five years ago. The spike has come even as state officials have tried to shrink populations. (The total excludes municipal jails, which the state does not regulate.)"

The article also included a link to a a consultant's report on suicide prevention at the Harris County jail.

HPD jailer gets year of probation and week in jail for assault case (Dec. 15)

After an inmate allegedly spit at him, a civilian HPD jailer "attacked a mentally ill inmate, hitting him multiple times in a padded cell at the Houston Police Department's Central Jail," according to the Harris County DA, which resulted in a conviction on misdemeanor assault charges. Further, said the DA, "video surveillance helped authorities identify discrepancies" in the jailer's account of events.

"'This case illustrates the importance of having a video when complaints are made against law enforcement officials,' Julian Ramirez, chief of the District Attorney's Office Civil Rights Division, said in the release. 'We could not have proven this particular case without the video to disprove the justification given by the jailer.'"

Inmate's claims of jailer abuse fall on deaf ears (Dec. 22)

This story by Anita Hassan and James Pinkerton opened:

William Curtis Evans is serving three years in a Texas state prison for assaulting a detention officer in the Harris County Jail named Larry Poag.

Exactly what happened when Poag fingerprinted Evans for a bicycle theft charge in March 2014 remains in dispute.

Poag claimed Evans, handcuffed and shackled, bit him on the forearm. The 67-year-old jailer later admitted hitting Evans in the face to stop the attack, disciplinary reports state.

Evans denied biting Poag and claimed the jailer assaulted him and bent his finger back so far that it broke.

But Evans would be sentenced to prison before anyone at the Harris County Sheriff's Office investigated his complaint, learning the hard way that there were few safeguards for inmates who claim to have been assaulted by guards.

The Chronicle found eight cases in which inmates were choked, punched or kicked by detention officers and then ended up facing felony charges for alleged crimes against staff members, even though jailers were later disciplined for misconduct in connection with the same incidents - either for using excessive force or failing to report the incidents. Three of the eight, including Evans, were convicted and went to prison.

The Sheriff's Office does not routinely inform prosecutors of internal investigations into jailer's actions that are directly connected to criminal allegations against an inmate, even when disciplinary action is issued against jail staff that is related to those charges, a sheriff's spokesman confirmed in an email.

Inmates accused, charged despite workers own misconduct (Dec. 22)

Another one from Anita Hassan, summarized in this passage:

a Houston Chronicle investigation has found misuse of force by staff against inmates is prevalent and hard to prove, especially when jail staff file charges against inmates in altercations during which their own actions have been called into question.

Between 2009 and May of this year, the Harris County Sheriff's office has pursued charges more than 900 times against inmates for harassment, assault and other crimes against public servants stemming from incidents within the jail, according to court records.

With the U.S. Department of Justice's Civil Rights Division continuing its review of excessive force by jail staff and pursuing an "ongoing law enforcement proceeding" in the jail, the Chronicle found that jail staff members have been disciplined in more than 120 incidents for misuse of force and other abuses of authority since 2009, records show.

Several of those disciplined have been involved in dozens of inmate prosecutions.

Tough bail policies punish the poor and the sick, critics say (Dec. 26)

This story by James Pinkerton and Lauren Caruba buried the lede, which should have been that "Fifty-five inmates died in the [Harris County] jail while awaiting adjudication since 2009. Eight were too ill to appear at initial bail hearings."

We also get this description of bail hearings in Houston, where it should be noted that indigent defendants are not represented by counsel: "Magistrates don't actually meet defendants, who are jailed across the street. Instead, faces appear on a screen. Few questions are asked. Some hearings last less than a minute."

County pretrial services employees interview most defendants, but "It's unclear whether magistrates review responses." "In recent hearings," reported Pinkerton and Caruba, "getting through the docket fast seemed to take precedence."

* * *

In summary, if you're too poor to post bond in Houston, your bail hearing will be a joke, with no lawyer to represent or speak up for you. You might get sick in jail or be beaten by a guard then convicted of a felony for assaulting him. Even if you're innocent. And if despair overtakes you and you attempt suicide, maybe no one will be there to stop you; perhaps they'll even falsify records after the fact to cover up their negligence.

That won't be everyone's experience, but these stories show it's been some people's. The Harris County Jail is so large that, among US states, it would rank as a mid-sized prison system. So when there are problems, they tend to scale up.

Houston voters sent a pretty strong message recently by failing to give former Sheriff Adrian Garcia a spot in the runoff for Mayor in a race which, at one time, some people thought was his to lose. IMO his poor showing stemmed largely from the public's recognition of problems at the Harris County Jail on his watch, some of the worst of which are cataloged in the stories above.

Perhaps that bodes well for finding solutions: If voters are going to punish politicians for these problems, maybe it will create some urgency for remaining Harris County pols with responsibility over the jail.

Nueces jailer who beat inmate, accused him of assaulting a public servant, faces no consequences

Here's a story that reminded me of the unheralded Carlos Flores exoneration, where a man pled guilty to assaulting an officer when really the officer had assaulted him, while handcuffed, and the police department had exculpatory video in its possession that it failed to turn over to prosecutors.

In Corpus Christi in August, reported Krista Torralva at the Caller Times (Aug. 12):

A Nueces County jailer who accused a former inmate of attacking him admitted video footage showed the inmate was the victim, according to a sheriff's office investigator's report.

Prosecutors declined to move forward in June with a charge of assault on a public servant against the inmate, Danny Gonzales. Last week, a case against him involving another jailer in a separate incident in the jail was dismissed.

Though none of the newspaper's coverage names the jailer, to its credit, the Caller Times filed extensive open records requests regarding the incident and obtained video:

Video of the May 31 incident shows an officer open the door to Gonzales' cell. Gonzales approaches the officer and appears to say something to him. The officer then pushes Gonzales, pins him against the cell wall and wrestles him to the ground while another officer looks on. The second officer joins the first in forcing Gonzales to the ground and the two officers punch the inmate several times. At one point, the second officer pushes Gonzales' face against the ground. About six additional jailers respond as the incident ends. Two of the officers then lead Gonzales out of the cell.

The video, which lasted about three minutes, has no audio.

Both officers wrote in their reports that Gonzales swung at one of them when they tried to secure his left arm. The officer told a sheriff's office investigator that he placed his hand on Gonzales' arm to have him back up before Gonzales struck him, according to the investigator's report. The video does not show the officer placing a hand on Gonzales before charging him.

The investigator wrote that she had the officer watch the video and asked "if he still considered himself as the victim or if he felt that he assaulted" Gonzales.

"(Correctional Officer) stated that after viewing the video surveillance that Inmate Gonzales was the victim," the investigator wrote in the incident report.

In addition:

Lorena Whitney, a chief prosecutor, cited the video when she declined to accept the case against the inmate.

"Video does not match what officers described as to what occurred before assault (and) during assault," Whitney wrote in a form rejecting the case dated June 11, five days before the investigator interviewed the officer.

In the next day's paper (Aug. 13), Sheriff Jim Kaelin defended the jailer's action, and emphasized that the victim was somebody they'd frequently seen before. "Gonzales has a 2013 conviction for assaulting a public servant," the paper reported, and "Court records show he also has misdemeanor convictions including failing to identify himself as a fugitive, driving with an invalid license and for assaulting a family member. Gonzales was arrested last year for violating conditions of his probation."

For prosecutors, though, that didn't mitigate what they'd seen on the videotape:

District Attorney Mark Skurka said as a result his office is tightening its requirements of the jail to accept assault on public servant cases. He expects prosecutors will need video evidence in most cases of assaults on jailers or an explanation as to why video does not exist. He also wants any existing reports of prior or subsequent incidents involving the inmate and jailer.

Each year, the district attorney's office gets an estimated 30-40 cases from the jail involving assault on a public servant, Skurka said.

One wonders how many of those 30-40 cases per year have people who, like Gonzales, were in fact innocent of the charges?

So far, though, the jailer has faced no reprisals, has not been charged with a crime, nor even been named publicly in news coverage. On September 11, Torralva reported that:

A Nueces County jailer shown hitting an inmate in a cell during a videotaped confrontation has been cleared of any wrongdoing through an internal investigation.

"His actions were justified and were not in violation of rules and policies," Nueces County Sheriff's Office Chief Deputy John Galvan said.

In that story, we get this tidbit:

During a video taped interview with a sergeant before the internal affairs investigation one officer changed his account after watching video of the incident. The sergeant tells the officer his actions were inappropriate and asks him if he still feels like he is the victim, to which he answers "no."

Twice, Sergeant Marilyn King asks the officer if he assaulted Gonzales. The officer answers "yes" both times.

"I don't feel like I was the victim," the officer said.

So the correctional officer admitted he was not the victim of an assault, as he'd claimed in an official report, and that in fact he'd assaulted the inmate. But the Sheriff's department cleared him of any wrongdoing, and so far the DA's office has not indicted him.

At least, unlike in the Carlos Flores case, prosecutors vetted the evidence and outed the jailer's assault before forcing Gonzales to plea bargain to a crime he didn't commit. Thank heaven for small blessings.

When is falsifying records a big deal? A brief primer

Just so we're clear, because sometimes it can be confusing: Let's review when falsifying records might result in serious prison time.

Cops in Houston in a ticket rigging scam get probation for falsifying information on traffic tickets which real people had to pay. A Hill County Sheriff and his subordinates who falsified training and other records also all got probation.

But a self-styled "sovereign citizen" filing phony "liens" against a judge that no one would ever conceive he might actually have to pay: That guy gets 10 years, federal.

Because, when the public are victims and police are perpetrators, it's a small-ish, excusable offense. When the victim is an Important Person, we throw the book at them.

Grits harbors little sympathy for the sovereign citizen folk but the fake liens they file are worthless and there's no chance any court at this point would take them seriously. (Some of the documents are in fact laughably funny - I used to periodically run across them back when I performed opposition research.) These fake liens might merit some sort of criminal-justice response - or you could create a mechanism to administratively ban people who engage in malicious filings - but it's hardly worth 10 years in prison for the equivalent of leaving a bag of flaming poo on the porch and ringing the doorbell.

By contrast, Grits considers it much more serious business when public servants falsify information on traffic tickets - which are a formal accusation of criminal conduct, even if only a Class C misdemeanor - or when police training records are faked.

No one will ever make that judge pay a phony debt, but someone could be falsely accused when a cop lies on a ticket, or faked training records could allow an insufficiently trained officer out in the field. The consequences from those crimes are much greater, even if the punishment is much less.

Widespread police testilying alleged: Tarrant DA responds by eliminating method of documenting it

When a prosecutor hears a police officer lie on the stand, should there be a process by which they document it, or should they just keep using that cop over and over as a witness in the future?

That's the core issue raised with the recent release of prosecutor assessments of alleged police officer testilying in Tarrant County DWI cases. In a story titled "Officers accused of lying, "winging it" by Tarrant County prosecutors, documents show" (6/20):

[Tarrant County District Attorney Sharon] Wilson said that though she could not confirm the allegations, she believed that handwritten notes on 19 of the forms potentially rose to the level of being Brady material — information that under the law must be turned over to the defense. Accordingly, her office as sent out some 4,000 Brady notices to defense attorneys who had cases in which the officer was in any way involved.

The 16 officers and three Breathalyzer operators whose credibility was questioned in the forms were unfairly maligned, were never given a chance to defend themselves and their agencies were never alerted, according to both a police union leader and an attorney for two of the officers. ...

Two Fort Worth officers and a former civilian breath test operator with the department were among those accused of lying, many times in testimony, during misdemeanor trials dating to 1993.

Nine other law enforcement agencies also received notice from the DA’s office that a former or current employee’s credibility had been questioned by prosecutors, including an Arlington sergeant who now serves in a high-ranking position.

Rather than formalize the assessment process, though, or assigning a supervisor to monitor content, the DA will simply cease having prosecutors fill out the forms. Seems like the wrong message.

The misdemeanor chief who authorized the memos, Richard Alpert, who is an appointee to the statewide Texas Forensic Science Commission, was demoted over the episode - for either not monitoring the contents of the memos (the stated reason) or for recording such opinions in the first place (a reasonable subtext) - and no longer manages other employees.

Grits continues to believe that access to documents about law enforcement misconduct for impeachment purposes will be the next big hurdle to full implementation of the Michael Morton Act and open-file discovery in Texas. Usually when I've said that I'm talking about police department disciplinary files, particularly in civil service cities. But this event reminds us that front-line prosecutors often are privy to testilying when it happens.

Shouldn't there be a requirement that they record it when they see it instead of eliminating the mechanism by which the DA's office discovered the problem? And now that the forms are gone, are prosecutors relieved of an obligation to disclose that knowledge just because they didn't write it down?

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article25066810.html#storylink=cpy ...

'Police Misconduct as a Cause of Wrongful Convictions'

The headline of this post is the title of a new paper by Georgia Sate law prof Russell Covey. The abstract reads:

This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.

Covey focused on the Rampart and Tulia episodes to hone in on causes of wrongful convictions that may not be captured by the sorts of cases that win "actual innocence" claims. He observed that:

The vast majority of the exonerations studied to date occurred in rape cases following DNA testing and murder cases often involving the death penalty. Such cases, comprising a tiny sliver of the criminal justice system workload, are relatively unrepresentative of the vast majority of felony convictions. As a result, and as researchers compiling these datasets acknowledge, the most closely analyzed data on wrongful convictions does not capture a representative sample of the probable distribution of wrongful convictions that occur

That's a good point. Biological evidence only exists to be tested in around 10% of violent crimes and in most older cases was not preserved for testing after the fact. Focusing solely on DNA exonerations disproportionately emphasizes rape and capital murder cases where evidence is most likely to a) exist and b) be preserved, but that's not typical for the vast majority of criminal convictions. And anyway, he argued, false convictions likely occur in different types of cases for different reasons:

as one of the nation’s leading experts on exonerations, Professor Samuel Gross, has frequently emphasized, the primary causes of wrongful convictions are almost certainly crime-specific. That is, the factors that tend to cause wrongful convictions in rape cases are different from those that cause wrongful convictions in murder cases, and different from the causes of wrongful convictions in burglary cases, assault cases, and drug cases. The next generation of research must approach wrongful convictions in a more fine-grained manner.

In particular, argued Covey, "wrongful convictions in the mass exoneration cases are tied together by a single dominant causal factor: police misconduct," fact that distinguishes them from DNA exonerations, the majority of which involved faulty eyewitness identification:

While the leading identified cause of wrongful convictions in past studies of exonerations is witness misidentification, a very different dynamic is at work in the police misconduct cases. Police misconduct generally, and perjury in particular, was the primary cause of wrongful convictions in every Rampart and Tulia case resulting in exonerations. Witness misidentifications played virtually no role in any of the cases.

Bottom line: "the primary 'cause' of false convictions in the Rampart and Tulia scandals was police perjury, some form of which was present in 100% of the cases. ... After police perjury, the most common 'causes' of false convictions were the false confessions generated through police misconduct."

Another notable distinction was "the tendency of exonerees in these cases to plead guilty rather than go to trial confirms what many have long suspected: that the problem of wrongful convictions is not limited to the small number of cases in which innocent defendants unsuccessfully contest their guilt in a jury trial." Wrote Covey, "If there ever was any real doubt that false guilty pleas can occur in large numbers, the Rampart and Tulia data put those doubts to rest, indicating that at least in some types of cases, innocent defendants are far more likely to be convicted through a guilty plea than at trial."

Indeed, Covey found that actual innocence has only a slight effect on whether defendants plea guilty, arguing that it "appears from the data that actual innocence does induce some defendants to refuse a guilty plea and hold out for trial, but that the incentive has only a marginal effect, leading the innocent to contest their cases at trial at an approximately 10% greater rate than those who are actually guilty. Nonetheless, the data underscore that the vast majority of the actually innocent resolve false charges against them by pleading guilty." And when innocent defendants exercised their right to a trial, "those who did and lost paid a heavy price for that decision."

Covey concluded that, "Police misconduct, when it occurs, is a major source of wrongful convictions." The article closed with these observations:

Comparison of the mass exoneration data with prior exoneration studies suggests that two important adjustments to the empirical picture of wrongful convictions may be in order. Although earlier studies of wrongful convictions found only a small number of cases involving guilty pleas, in the mass exoneration cases, guilty pleas provided the main procedural vehicle to criminal conviction. In more than 80% of the combined Rampart and Tulia cases, innocent defendants pleaded guilty. While innocence did seem to provide a marginal incentive to some defendants to reject guilty pleas, actually innocent Rampart exonerees held out for trials only slightly more frequently than their guilty counterparts. The Rampart and Tulia exoneration data thus provides strong reason to suspect that guilty pleas are not insulated from the risk of wrongful convictions.

Consideration of this data should also raise the profile of perjury among the causes of wrongful conviction. Although eyewitness misidentification has received a substantial amount of attention as one of the main identified contributing factors in wrongful convictions, the mass exoneration cases make clear that the “causes” of wrongful convictions vary significantly by crime. These exonerations show that police misconduct is a potentially significant cause of wrongful convictions in its own right. Procedural reforms that reduce the incidence of police misconduct, therefore, should be high on the list of priorities among those working to reduce wrongful convictions.

Police prevarication in Austin overlooked with wink and a nod

I ran across a story from a couple of years ago on a local Austin attorney's blog about alleged police testilying which, before the advent of attorney blogs, would undoubtedly have been silently ignored. Don't get me wrong, it was still officially ignored, by the police department, prosecutors, the judge, etc.. But Austin attorney Kiele Linthrop Pace at least did not remain silent, recording the story of an Austin police officer who seemingly, rather blatantly fabricated facts in a probable-cause affidavit.

"It's been a long time since I learned that police officers not only have incentive to lie but that many of them do it all the time," her blog post opens. "As explained long ago by a federal appeals court judge, who was recently quoted in a Wall Street Journal article, 'It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.' But I was still taken aback by the blatant lying that I encountered last week." She relates that:

the probable cause affidavit that Officer Gerardo Cantu, APD#6111, swore to and filed in this case indicated that he arrested my client for trespassing on a "heavily forested" property at 8212 Sam Rayburn Drive, which contained trees "painted with a purple band" as well as posted "No Trespassing" signs that were "in plain view" on all sides of the property.

As you can see from the street view provided by Google Maps, this is not a heavily forested property. When I drove out there last week, I discovered that it is, in fact, a multi-unit property in a densely populated urban slum. There's a single tree with no purple paint in sight. The only signs posted anywhere on the property do not say "No Trespassing." Rather, they prohibit drinking and loud music in public areas, roaming around, soliciting, loitering, and so forth.

In fact, no element of Officer Cantu's criminal trespass allegation against my client turned out to be true. He just made the whole thing up. The really surprising thing is that he's willing to commit aggravated perjury when it's so easy to prove.

As for the case against my client, I printed out the whole stack of photos that I took at the scene, which included a shot with the address shown on the side of the building, and showed them to the prosecutor at our scheduled pretrial conference last week. She decided that it was in the "interest of justice" to dismiss.  Imagine that.

I emailed to ask the Austin PD what happened to the officer in question as a result of this incident, and received a reply from Assistant Chief Patti Robinson declaring, "The case that you mention was reviewed by the Austin Police Department's Special Investigations Unit. It was concluded that there was no merit to this allegation and therefore no violation of law by Officer Cantu."

Really? "No merit"? So it really was a heavily forested area? There really were "No Trespassing" signs despite photos to the contrary? And the purple bands on trees, they were there, too? Honestly? You're just going to piss on my shoes and tell me it's raining? Given so many details in the officer's sworn statement were not just wrong but in fact the precise opposite of the facts on the ground, either Officer Cantu was "lying," as the attorney suggests, or he is one of the most incompetent observers in history who ever put pen to paper to describe what they saw. "No merit," indeed!

I said as much in a followup email, declaring that, "Unless your Special Investigations Unit found he wrote down the address wrong and there's a nearby forested area with purple bands on trees, etc., this looks an awful lot like a case of abuse of authority and testilying that got overlooked/covered up." Chief Art Acevedo replied personally, a bit peeved: "You are taking the word of the Defense Attorney at face value. If you or the attorney feel a crime was committed by the officer, I recommend you file a sworn affidavit and complaint." I responded, "No, I'm reading the probable cause affidavit and looking at the photos, not taking a Defense Attorney's word 'at face value.' Look at the links for yourself." to which he finally replied, "We investigated and consider the matter close." (sic)

I forwarded the exchange to the attorney in question, who responded: "I'm curious what they mean when they say they reviewed the case. They certainly didn't have any contact with me and I doubt the prosecutor who dismissed the case brought it to their attention. I can't say I'm surprised that they blew it off but they could have at least put some effort into coming up with a smarter reason. They really don't care that you can prove that they're lying, do they?"

Bully for Linthrop Pace for doing the legwork to expose the cop's incongruous statements and springing her client from trumped up charges. This story reminds me of Jeff Blackburn's comments recently in the inaugural Grits for Breakfast podcast, that "criminal defense lawyers who get paid for a living ... understand after awhile that you investigate cases, and a lot of cases go away once you do investigate them." Linthrop Pace's story is a great example of exactly that. I wish I could also say it's a great example of prevaricating cops being held accountable by their department, prosecutors, or the courts, but they all seemed to have let the matter pass with a wink and a nod.