Nuther challenge to Harris Co. ME: Called administrative and judicial officers by county at different times

A second attorney has filed claims that Harris County medical examiner reports are invalid based on researcher and occasional Grits commenter David Fisher's findings that most of them had not signed constitutionally required oaths of office or bribery statements which are seemingly required for them to perform their duties. Michael Reed at Houston Community Newspapers proivides a good overview of the issues at stake based on recent court filings ("Legal standing of Harris County medical examiner at issue," Jan. 13):

In a Sept. 15, 2011 opinion, ... Glen Van Slyke, assistant county attorney, wrote that the medical examiner is not an appointed public “officer,” but rather an “administrative employee” of the Commissioners Court. As such, holding the position does not require taking an oath of office or providing any written statements.

Oddly, in 2009, Harris County went before the 1st Court of Appeals to argue that Sanchez was a judicial officer and as such could not be barred from performing an autopsy opposed by the deceased’s family for religious reasons.

Harris County was joined in its position by Tarrant, Dallas, Bexar, El Paso and other medical examiner counties. When challenged later, each of these, unlike Harris County, executed the oath and statement as required by the state Constitutional.

Sanchez, through a spokesman, declined to comment Friday.

In the 2009 case, Harris County vs. Afsaneh Saghian, the court ruled “the Medical Examiner of Harris County is a judicial officer and that it is manifestly improper for a district court to enjoin him from performing duties which he deems — in a valid exercise of his discretion — to be necessary and required of him by statute.”

That may be for the best from the county’s vantage point. If the medical examiner is not a judicial officer, according to the defense attorneys, an even bigger problem arises — one that could result in criminal charges, rather than constitutional violations.

Unlike in many other states, physicians in Texas are prohibited by state law from taking part in “corporate practice of medicine.” In other words, doctors cannot practice medicine that is “any way controlled or directed” by a non-physician. This, according to Bollinger, includes partnerships and employee relationships.

“A non-physician cannot hire a physician to be a physician except in very limited exceptions,” Bollinger’s motion said. “None of those circumstances or exceptions apply to the claimed relationship between the Commissioner's Court and the Harris County Medical Examiner.”

Possible penalties for practicing corporate medicine include $1,000 fine for each violation with each day a separate infraction, and the possibility of third-degree felony changes for each violation against the doctor in question.

“Each of these penalties could be applied to both Sanchez and the employer, who the county attorney claims is the Harris County Commissioner's Court,” the motion said.

That would entail roughly 1,750 civil violations and criminal offenses on the part of the both parties since Sanchez took office, January 2003.

The underlying issues may seem like bureaucratic trivialities, but at the same time, the county clearly is in a bind, having argued to an appellate court in 2009 that the ME is a judicial officer (when they wanted to maximize the office's authority to override family religious prerogatives), but now contradicting themselves to say the ME is an administrative employee in order to wiggle out of the Catch-22 they're caught in.

Other counties faced the same dilemma and most went ahead and had their ME file the relevant oath and bribery statement, but it's an open question what the implications would be if a court found MEs work in past cases was invalid, and it's not just Fisher and a few defense attorneys who suspect that may be the case. As Grits noted last year when this came up, "The Webb County Attorney had declared that 'Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void.' Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they 'void' as well?"

I can't speak to which legal position is correct, but even if Fisher and Co. are right, it would take great courage for a judge to side with them, raising questions about dozens if not hundreds of inquests in murder and manslaughter cases performed while documentation was inadequate, not just in Harris County but potentially in many jurisdictions, if a single judge cracks the door open. Scott Durfee at the DA's office told Reed that they're paying little attention to the issue at the moment (perhaps distracted by proceedings at the grand jury), but "that would change, if an adverse ruling were reached." Indeed, if that happens, a lot of things could change. For want of a nail, the shoe was lost ...

The Trials of Eroy Brown

Eroy Brown, a TDCJ prisoner serving time in a South Carolina prison to protect him from state retaliation, is up for parole, reports Mike Ward at the Austin Statesman ("Brown case highlights reluctance to parole long-time offenders," Jan. 18). "Brown is serving 90 years as a habitual criminal for robbing a Waco convenience store of $12 and some candy bars." His story is the subject of a recent book, which I've not yet read, but based on that account, Ward describes in broad strokes the incident that made Brown notorious:

Within the prison system, he is most noteworthy for what happened during a deadly struggle on April 4, 1981, alongside a drainage ditch called Turkey Creek in the farm fields at the Ellis Unit near Huntsville. When it was over, the farm manager, Billy Moore, lay dead from a gunshot from the warden's pistol and the warden,

Wallace Pack, was drowned. Brown claimed self-defense, saying that Moore had been stealing tires from the prison and was afraid Brown was about to snitch on him.

The trial transcript, detailed in a 2011 book about the case, "The Trials of Eroy Brown: The Case That Shook the Texas Prison System," details the events of that day:

Moore drove Brown to the ditch and called for Pack to join them.

"You ain't going to be able to tell a (expletive) thing on me. You ain't going to tell (expletive) on me," Brown testified Moore told him.

Pack pulled the pistol from his car's trunk, and with Brown handcuffed by his left wrist, threatened to shoot the convict, with the revolver cocked at his temple.

"Shut your (expletive) up, boy. I will splatter your brains all over this street here," Brown testified the warden told him.

Spread-eagled astride Pack's car, Brown struggled to wrest the gun from Pack.

The gun went off five times. Brown was shot in the foot. Moore was fatally shot in the head. A third shot grazed Pack's hand. Pack and Brown continued to fight for the gun, rolling into the water-filled ditch. Pack pushed Brown's face into the muddy water, trying to drown him. Brown rolled on top of the warden in the water.

"I laid on him and laid on him," Brown testified. "I don't know how long I laid on him. He stopped moving."

Prison officials insisted the deaths were murder, and prisons were later named for both Moore and Pack.

Brown went to trial three times. Each time, he was acquitted. The acquittal of a black convict in the deaths of two white prison officials never went over well in the hidebound world of Texas prisons, where prison farms were run like plantations and inmates often called their guard supervisors "boss."

By 1984, Texas had agreed to settle a separate federal civil rights case ensuring that Brown and about two dozen other convicts who had assisted in the investigation and other cases would never have to serve time in Texas prisons because it would be too dangerous for them.

That's why Brown has spent the past 26 years in federal prisons in California and South Carolina for the Waco robbery. His attorneys blamed the long sentence on publicity about the prison murders.

Go here for more on the book, The Trials of Eroy Brown, by Michael Berryhill from the University of Texas Press.

Obama Administration hands lucrative, belated Christmas gift to private prison industry

In a major victory for private prison lobbyists, the Obama Administration has announced a dramatic change in incarceration policy regarding economic migrants, aiming to incarcerate pre-trial and adjudicate a much larger percentage of non-criminal immigration cases instead of using "voluntary returns," or just shipping economic immigrants back to Mexico, typically without processing through the court system. Illegal immigration has plummeted since the onset of high unemployment in the United States, so this policy props up a massive federal immigration bureaucracy built up during the last two presidential administrations with a new, enhanced raisson d'etre. Reported the El Paso Times ("US will toughen voluntary returns," Jan. 18):

El Paso lawyer Carlos Spector, who specializes in immigration and asylum issues, said he does not believe there are enough federal prosecutors and judges to handle all the potential cases that could be referred to the U.S. Attorney's Office. "We have about 5,000 cases on the docket of the Downtown courthouse," Spector said. "We are waiting two to three years to get a hearing for some cases.

"With the apprehensions being down so much, the Border Patrol really needs to justify all the money it's been getting for its budget," Spector said. "It's like bringing the soldiers back from Afghanistan, and then once they're here, what do you do with them?"

Spector said Mexico's drug cartel wars also have created new dangers for immigrants seeking to cross the border illegally. Mexican authorities have implicated violent cartels in the kidnappings and murders of hundreds of immigrants, usually stemming from disputes between rival human smugglers associated with the drug cartels.

Not only are there dangers from cartels (busloads of economic migrants have been massacred as part of the savage violence in northern Mexico), but "Officials of Mexico's National Commission for Human Rights, a government agency, said that 3,000 Mexican migrants died while crossing the border between 2000 and 2010, many of whom got lost without food and water in the desert." So incredibly desperate people are already willing to risk their lives from cartels and the elements - the death penalty, if you will - to get into the United States. That's far more people than have been executed over the same period for capital murder! Think about it: As a practical matter, will the possibility of a year or two in a Geo-Group run prison and formal deportation really be a big deterrent for such folk? This policy is much more about Democratic positioning among independents and conservative Dems before a presidential election than addressing dysfunctionality in the immigration system.

As a byproduct of that electoral political agenda, private prison companies and potentially even counties that built speculative prisons might see a wave of new, taxpayer-funded contracts. That's a disappointment for anyone who hoped federal expenses might fall after the rate of growth in immigration detention finally seemed to be receding with the deflated economy. As usual, though, incarceration rates are driven mostly by policy decisions as opposed to the actual scope of the problem the state is trying to solve. That's why immigration detention may increase while illegal immigration drops, just as incarceration rates may rise even while crime is dramatically falling.

A US Attorney in California explained the fundamental difference in the new approach to CBS News: "It has not been the practice ... to target and prosecute economic migrants who have no criminal histories, who are coming in to the United States to work or to be with their families. ... We do target the individuals who are smuggling those individuals." Now in many cases that could change, if the Border Patrol gets their way. Prosecuting non-criminal migrants themselves opens up such a vast new pool of incarceration possibilities that I won't be surprised to see stocks at Geo Group (GEO) and Corrections Corporation of America (CXW) jump in response.

As a middle-aged man, from a purely selfish perspective, I want as many immigrants as possible here, low-waged and high, all legal, amnestied, documented, and paying into social security and Medicare, preferably, if only so there will be enough workers footing the bill when it's my turn to benefit from those programs. Immigration benefits the economy, just as a large proportion of Texas' much-admired economic miracle may be attributed to large-scale migration to the state (including illegal immigration, most of which IMO should have been formally allowed), but that's a different polemic for another day. Setting aside one's big-picture stance on immigration, this particular policy is a solution quite literally searching for a problem (except, I suppose, for the problems of the punishment-for-profit crowd), providing little additional deterrent or benefit, but with a large price tag attached and lucrative new contracts handed out like candy to private-prison interests. Pointless policy, dumb idea.

Most Texas counties don't meet governor's new crime data criteria, may lose grants

Grits mentioned earlier this month that the Governor will withhold a portion of federal grant funding from counties beginning next year if they don't adequately update criminal history records, particularly dispositions of cases after an arrest has been made. Of the largest counties, Harris and Bexar have no worries, but Dallas, Travis, Tarrant, El Paso, and many other counties all have significant remedial work to do to avoid losing grant funds. (Find a complete list of non-compliant counties below the jump.) I asked the Governor's office for a copy of the memo, and here's the text:

John Bradley named '2011 Worst Prosecutor of the Year'

Your Winner: 2011 Worst Prosecutor of the Year, John "Marty" Bradley

Over at The Agitator, Williamson County DA John Bradley edged out an extremely competitive national field to win Radley Balko's 2011 Worst Prosectuor of the Year Award based on a reader poll. As one of Radley's Agitatortots commented, "although the award is given for a year, it is effectively a lifetime achievement award." Indeed. Well earned.

Meanwhile, Grits feels compelled to point readers to this hilarious video clip of a scene from a WWII film in German which somebody subtitled with biting dialogue drawing on themes from the Michael Morton exoneration. Normally Grits disdains Hitler references on the web, deferring to my college pal Mike Godwin's dicta regarding the uselessness and disrespectful nature of such comparisons. However, this piece doesn't compare Bradley's actions to those of Hitler's, which is the usual Godwinian trope. Instead, it uses the scene to explore the emotional state of a megalomaniac in free fall. Anyway, it made me laugh.

On a more serious, related note, last week the Texas Tribune interviewed Michael Morton's attorney John Raley about the case, and published excerpts in video and transcript form. And Wilco Watchdog is going through old John Bradley posts from the District and County Attorneys user form and finding lots of controversial opinions expressed that don't always jibe with his comments to the MSM.

Bradley's GOP primary opponent, Williamson County Attorney Jana Duty, has been racking up law-enforcement endorsements and this week received the endorsement of the former Williamson County DA Ed Walsh, who preceded Ken Anderson and John Bradley in the office. A reader from Williamson County emails to say, "There are bandanas appearing on his signs all over the county. People are really sick of him and no longer scared to speak out."

What a difference a year makes! This time in 2011 Bradley was on top of the world, with many anticipating that by the end of the year his long-time patron Governor Perry may even appoint him to the Court of Criminal Appeals. But first the Texas Senate rejected JB's nomination as chair of the Forensic Science Commission, then the Michael Morton exoneration splashed his and Ken Anderson's names across the national press as poster children for indifference toward valid innocence claims and alleged prosecutorial misconduct. Now, not only is appointment to Texas' high criminal court a pipe dream, he might not even win reelection in Williamson County. Grits remains flabbergasted by Bradley's eye-poppingly rapid downfall, which will reach truly epic proportions if he actually loses the April primary. I'm sure the DA himself must be stunned at the development.

Counties seeking jail population reductions

A pair of stories out of smaller jurisdictions provide examples of ways Texas counties are attempting to save money by reducing jail populations:

• Coryell Commissioners discuss using probation to reduce jail overcrowding
• Angelina 'rocket docket' shows jail numbers going down

In Coryell County, commissioners are hoping local judges will begin using personal bonds more frequently for non-violent defendants, allowing them to be supervised pretrial by the probation department to clear up space in the jail. Meanwhile, in Angelina county a retired judge is assisting to process cases more rapidly, reducing the jail population by more than 50 people per month in a facility with a capacity of 279.

Peer pressure promoting police binge drinking begins in academy

Tanya Eiserer at the Dallas News has a crackerjack story on the hot-button topic of alcoholism and law-enforcement culture ("They drink when they're blue: Stress, peer pressure contribute to police's alcohol culture," Jan. 16, behind paywall). Here's a notable excerpt:

Drinking is part of the police culture.

“They drink a lot, and they drink together,” said John Violanti, a research associate professor at the University at Buffalo and a former New York state trooper who studies police stress and alcohol use. “It’s part of the macho image, part of being a cop.”

Experts on police, and many officers, say cops drink because of peer pressure and high stress levels. They get into trouble with alcohol because they feel invulnerable and, as society’s helpers, are less likely to show weakness by seeking help. As mores change and technology advances, they’re more likely to get caught and their colleagues less likely to risk assisting them in covering up their problems.

The article is filled with examples of officers binge drinking with other officers then getting in serious accidents. The story opened with these anecdotes:

Kelly Beemer drank heavily at a South Dallas bar before hitching a ride home in a squad car, where she fired a gun through the floorboards.

Rachel Nicely downed margaritas at a Greenville Avenue bar before climbing behind the wheel, hitting a parked car and being arrested for drunken driving.

Jesus Cisneros had eight beers and four shots at a birthday party and later slammed his city vehicle into another car, killing the driver.

All were police officers with promising careers. All drank heavily with other off-duty officers on the day they got into trouble.

Their careers were ruined.

Other tales included an officer who showed up at a SWAT assignment with alcohol on his breath and later, in another incident, was found passed out in a running city vehicle with a can of Foster's in his lap. Despite those lapses, he was allowed to remain on the force eleven more years until another DWI forced his resignation. So some of these issues arise form lax police management giving second and third chances to chronically alcoholic officers, even when they drink on the job.

A treatment provider said that "suppressing trauma and stress" is a root cause of alcoholism in law enforcement, but it's also clear that peer pressure to participate in police drinking culture begins well before officers ever hit the street. According to one expert quoted, "Rookies are indoctrinated into the brotherhood in blue and the culture of alcohol consumption at the police academy." One of the ex-Dallas officers interviewed said that's where her problems started:

Former Dallas police officer Shelly Pierce said in an interview that she drank a lot while in the academy and afterward. She typically drank, off duty, with other officers and a shared expectation that it was going to be a wild night.

“When we go out, we’re going out,” said Pierce, who lost her job over a 2006 drunken-driving arrest. “We’re getting drunk. We’re going to be the loudest. All the attention is going to be on us. … It’s because of that whole ‘shock and awe’ thing. I’m going to be the one that shocks.”

Laura Brodie, a California-based psychologist who worked with the Los Angeles Police Department’s employee assistance program, said she has found a lack of moderation prevalent in the police culture.

“It’s all or nothing,” she said. “When they get into drinking, they start competing in their drinking.”

First-rate reporting by Eiserer on a seldom-discussed subject. As she'd reported in a 2009 story, roughly 89% of police suicides (which occur far more frequently than deaths in the line of duty) involve alcohol abuse, so this subject not only impacts the safety of the public (nobody wants a drunk in uniform wielding a gun or arrest authority) but also the officers themselves.

'Neither punished nor treated, just jailed'

At the Dallas News, columnist Steve Blow had a piece yesterday ("Mental illness leaves man trapped in county jail," Jan. 15) about a defendant named Reveau Skinner suffering from paranoid schizophrenia who was declared incompetent to stand trial but then waited in jail more than a year (so far) for a state hospital bed to open up to provide competecy restoration services (i.e., treatment to stabilize and medicate the iillness so the defendant is competent to participate in his own defense). Notes Blow:

If it were his heart or a hip that malfunctioned, he would undoubtedly be in treatment. But since it’s his brain that has the problem, he sits in jail month after month.

He should have been released a long time ago. But now he’s caught in the abyss between our criminal justice and mental health systems, neither being punished nor treated. Just jailed.

Earlier, a plea bargain was struck that would have released Skinner on probation - the victim in the domestic violence that sent him there incident had no desire to press charges. But after the court declared him incompetent, he couldn't even enter a guilty plea until after he'd been restored to competency, and that part of the process has stalled because of the shortage of state hospital beds.

The judge apologized to Skinner, but with that apology and a dollar he perhaps could get a soda at the commissary, but  not much else. IMO, after such a long time the judge should have flat-out ordered the state hospital to take this fellow, as judges in other jurisdictions have begun to do.

The Legislature this year gave with one hand on competency restoration while taking away with the other. They passed a statute for misdemeanor  defendants requiring their release if they don't get timely competency restoration, but for those charged with a felony, as in this case, there's no such safety valve. Meanwhile, they actually cut funding for state hospitals and mental health treatment, heightening scarcity and increasing time on waiting lists for competency restoration treatments.

This situation has lingered as long as your correspondent has been paying attention to county jail issues, and it's an area where underinvestment by the state heaps big problems and costs onto counties. To make matters worse, the only legislator who last session made the issue a real priority - Rep. Will Hartnett - is retiring from the Lege and will not return. Texas desperately needs somebody to take leadership on this question, but a betting man would likely wager the malaise and inaction will continue indefinitely, particularly with large budget shortfalls projected again in 2013. The situation is difficult for local officials but impossibly frustrating and cruel for the defendants themselves.

Indeed, in some ways the system seems more incompetent than the defendants. We understand that mental illness caused Skinner's incompetence, but what explains the incompetence of legislators, the governor, and the Department of State Health Services (which operates state mental hospitals) to cease this recurring nightmare? At least Mr. Skinner has a good excuse.

See prior, related Grits posts:

• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

Feds nix grants subsidizing SHSU crime lab

Texas' newest crime lab, run by Sam Houston State University in Montgomery County, opened in 2010 with the promise of three years of federal startup funding. But after budget cuts associated with raising the debt ceiling, that funding dried up and the lab has had to nearly double some of its fees. Reported the Conroe Courier (Jan. 6):

The Sam Houston State University Regional Crime Lab, which is operated by the university’s College of Criminal Justice and located in The Woodlands, started taking evidence from five counties, including Montgomery, in November 2010. A $1.5 million federal grant got the lab up and running.

But those agencies using the lab had agreed to three years of federal funding, after which the lab would complete its transition to becoming self-sustaining through fees, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

Diepraam said District Attorney Brett Ligon and SHSU officials have asked U.S. Rep. Kevin Brady, R-The Woodlands, to help find additional federal funds to supplement the fees paid by agencies.

“We are hopeful some funding will be found,” Diepraam said.

Montgomery County supplied 86 percent of the lab’s business, and the lab was charging a $200 flat fee for all drug and alcohol tests, Diepraam said.

Now, with the cut in funding, the lab will charge agencies $386 for alcohol tests and $290 for drug toxicology tests used for driving while intoxicated cases.

From November 2010 to October 2011, the lab ran 1,034 drug toxicology tests and 900 of those were from Montgomery County, Diepraam said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

The Regional Crime Lab will continue to run the drug toxicology and blood-alcohol tests, but all controlled substance evidence tests now will be sent to the Texas Department of Public Safety lab in Austin.

The average length of time for the Regional Crime Lab to turn around controlled substance tests is about two weeks, while the DPS lab can take up to nine months because of the volume of cases it gets from across the state, Diepraam said.

So the the county can pay $290-$386 for testing at the lab and get results back in 2 weeks, or send the sample to DPS and have it done for free, but not see results for up to nine months.

Unaddressed in the story, though, are the costs of delay: If the defendant is unable to make bail, say, in a controlled substance case, that also tacks on thousands of dollars in additional jail costs while wating for tests to come back. When that happens, the overall cost-benefit analysis still favors using the local lab, even at the higher price. Problem is, different revenue streams pay for lab testing and the jail, with different elected officials managing each sliver of the process. So budget myopia may cause prosecutors to send out for testing, even if in the long run it costs Montgomery County more money.

Attorney Paul Kennedy at The Defense Rests adds an additional concern about a possible fix suggested by the local DA:

MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

For the reasons mentioned above, I understand why the DA would want to subsidize the lab. But I agree with Kennedy it's problematic to rely on asset forfeiture funds for any government entity's base budget. Back when Texas used grant money to prop up dozens of regional narcotics task forces around the state, many of those local entities used asset forfeiture funds to pay for local matching under their grants, leading to skewed enforcement priorities.

Grits' view: By the time you add in additional jail costs from delays, the county in most cases is still better off paying to process cases more quickly. Balking at a $300-$400 fee seems foolhardy when the result is $40-$50 per day extra jail costs for up to nine months. (The phrase "penny wise, pound foolish" comes to mind.) The criminal justice system is just that, a system, with a lot of moving parts, so one can never look at cost figures like this in isolation. It's common for "savings" in one part of the system to result in even greater costs elsewhere. So federal subsidies are nice, but if Texans want a massive criminal justice system that, at any point in time, supervises more than 3/4 million adults in prison, jail, on probation and on parole (roughly the population of Austin), then paying for ancillary services like crime labs is an unavoidable expense.

Kennedy suggested three takeaway lessons from the episode: "First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity  is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime." That pretty much sums it up.

Forensic commission reviewing Austin, El Paso crime labs

The Forensic Science Commission directed their complaint screening committee today to consider a new case out of the Austin crime lab, discussed here on Grits, in which a fired analyst claimed that reports were issued without performing the underlying testing. They will decide at a future meeting whether to form an investigative panel based on the Complaint Screening Committee's recommendation. The Commission also questioned why Austin or Travis County officials hadn't forwarded the allegations about "drylabbing," in the industry terminology, at the time they first heard of the complaint. (The City had requested the Department of Public Safety look into the allegations, so they were clearly aware before now and could have notified the FSC.)

In other developments at the FSC, most of their day was spent discussing management shortcomings at the El Paso PD crime lab, were a lab worker who analyzed controlled substances turned out to be unqualified and incompetent. About 7-8 folks were there from El Paso including the District Attorney, an assistant city manager and various crime lab personnel.

Bottom line, while most of the media attention has focused on a single lab worker who couldn't pass basic competency tests, Commissioner Sarah Kerrigan, to the nodding affirmation of her peers, strongly urged that that lab worker not be used as a "scapegoat" to avoid bigger changes. When the El Paso lab began its certification process in 2006, the accrediting body found a list of shortcomings they asked them to fix, and which the lab claimed to have resolved. In 2011, though, when the incompetent lab worker came to light, a new assessment identified virtually all the same problems at the lab, still unresolved, that were cited in 2006.

The biggest problems involved the culture of the lab, which until recently was run by a police sergeant with no scientific background who had ultimate decision making authority, including the authority to resolve conflicts among scientists. The Quality Assurance manager, until recently, was disempowered and couldn't stop work when something went wrong. Indeed, during one period in 2010, two different people both thought they were the official quality manager; one of them was mistaken, but clearly there was a lot of confusion.

At times, very junior staff newly qualified in their field were put in the position of doing technical reviews of others' work and performing other high-level functions that were likely over their head. Kerrigan likened it to someone just getting their drivers license and then being hustled off to race in a Grand Prix.

The lab's internal culture discouraged questioning other examiners: "trust the examiner" was the office philosophy, said Kerrigan, but unfortunately not all of the examiners were trustworthy. Kerrigan mentioned one staffer who at different times came back with positive and negative results from the same sample. At least one false positive has been identified - a case where the test came back negative 44 times and positive once, so the lab reported the result as positive without mentioning the 44 negatives.

Kerrigan said their review of more than 1,400 pages of records and interviews with numerous officials during a site visit had revealed a fundamental lack of scientific leadership at the lab. The lab in particular still cannot find a qualified manager. A recent job search turned up empty, and they're reposting the position on January 23. Another commissioner expressed that it sounded like the lab was staffed by technicians instead of scientists able to engage in independent thinking. Kerrigan noted that lab staff attended training that taught correct practices, but nobody ever connected the dots when they came back to El Paso and things operated in a more rudimentary, less professional way. Another odd red flag: Caseloads at the EPPD crime lab are exceedingly low and it's not clear everyone employed in the controlled substance testing division is really needed. In 2010 they processed 863 cases; in 2011 it was 504. By contrast, a crime lab chief sitting next to me at the meeting said his analysts processed 150-200 samples per month, apiece!

The El Paso crime lab was put on probation last year by the accrediting body, which extended probation in September but finally took them off two days before Christmas. A representative of the accrediting body, though, told commissioners that ending "probation" didn't mean all is well or that El Paso is off the hook. They only have until April 6, he said, to find a qualified lab director and fix the other problems identified by the accrediting agency.

The Department of Public Safety agreed to perform a fairly extensive audit of the EPPD crime lab's controlled substances division within the next 30 days, so there will be more to come on this story.

Off-duty police employment deserves greater vetting

A story from the Austin Statesman published January 5 reminded Grits of a research project I conceived awhile back, but put on the back shelf because of a lack of resources and manpower (Oh, how I miss having interns!). The Statesman story opened:

Federal and local authorities are looking into the off-duty employment of several Austin police officers who were paid cash by a wealthy Mexican man to watch over his daughter while she attends college, the American-Statesman has learned.

Two officers have left the Austin Police Department in the past month since the inquiry started, and others who may have also worked on the private security assignment have been questioned.

Austin Police Chief Art Acevedo confirmed Wednesday that the department recently learned of allegations concerning one officer and "immediately launched criminal and administrative investigations." He declined to describe the nature of the allegations or disclose who alerted the department, citing the ongoing inquiry.

Acevedo also would not say how many officers have since been investigated or questioned.

"Anytime we investigate incidents, you are much better off as an organization to start with a very broad view to ensure that we don't miss anything," Acevedo said.

Sgt. Wayne Vincent, president of the Austin police union, said "less than 10" officers had their duties restricted in recent weeks after the department initially learned about outside employment concerns.

We won't know more about this case until the department releases more detail, but over the years Grits has observed that, when police corruption arises, there is sometimes a nexus of money changing hands surrounding either approved, off-duty employment or separate small businesses owned and operated by officers, who as a group are a remarkably entrepreneurial bunch. You'd be surprised how many veteran police officers have one or more small business registered in their names in addition to their day jobs, including a disproportionate share of officers with significant disciplinary records..

At one point a few years back while I was unemployed for quite a few months on end, your correspondent seriously considered taking up a major research project aimed at exactly these sorts of off-duty employment issues at Austin PD. The idea was to get all the approval forms for off-duty employment under open records for some period  of time, say a year, and to simultaneously take the complete list of Austin police officers and run their names at area courthouses and the Secretary of State to identify all sole proprietorships, business partnerships or Texas corporations registered under their names.

Once you've created a database of businesses owned by officers and those which employ off-duty cops, the larger task becomes systematically vetting the businesses to look for discrepancies, improprieties, litigation, government contracts, shady associations, etc.. It would be a monstrously large undertaking for a force the size of Austin PD - almost worthy of a book-length project - and in the end I decided Grits didn't have the resources to take it on as a one-man show, choosing to focus on other, more attainable priorities.

But I've always thought that the extracurricular moneymaking activities of law enforcement deserve more focused attention because often, when you look closely, as in this case, it can become a point of vulnerability for the department in many, perhaps too many, respects.

Former Austin crime lab scientist says reports issued without testing

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.

New arrests made for murder in which victim's brother was convicted as lone gunman

A reader alerts me to a possible false conviction out of Brownwood, and a recent one, to boot. Reports the Abilene Reporter-News ("Was Brownwood man wrongly convicted of killing brother? New arrests made in case," Jan. 10):

A recent twist in a December 2009 Brownwood murder case may cast doubt on the guilt of a man convicted of killing his brother, authorities said.

New information has led to two arrests and an ongoing investigation into additional suspects into the death of Ronald Philen, said Micheal B. Murray, Brown County District Attorney.

In November, Randall Philen, 52, was sentenced to life in prison by a jury that found him guilty of shooting his younger brother, Ronald, 49, in the chest. A motion for a new trial was filed by the district attorney’s office Tuesday.

“If it is determined that Randall Philen was not a party to the crime, this office will act swiftly to dismiss the murder charge against him,” Murray said. “If it is determined that he was a party to the crime, then he will be retried in light of all available information.”

Police unions finding renewed opposition after years of bipartisan kowtowing

In a local story from the Valley about a change of leadership at the police union in the McAllen police department ("Police officers union to move forward under new leadership," Jan. 7), I was interested to see a reference to the union's losses in their recent contract negotiations. Reported the McAllen Monitor:

Sgt. Joe Garcia, the union’s president since 2009, will be replaced by his vice president, Officer David Alvarado.

They helped negotiate the union’s four-year collective bargaining agreement, which runs until Sept. 30, 2015.

The agreement, inked July 18 after negotiations failed and the union unsuccessfully sued McAllen, was widely seen as a victory for City Hall.

“One thing I’ve learned is you’ve got to pick your fights with the city,” Garcia said, referencing the contentious negotiations.

The contract phased out a health insurance subsidy for some retired officers and eliminated a union information session for police cadets, an important recruiting opportunity. Union officials had pushed for an across-the-board raise and permission to work security at downtown bars while off duty, but city officials rejected those proposals.

With the contract behind them, Garcia decided to step down, and Alvarado ran unopposed to succeed him. Alvarado will be officially sworn in later this month.

While the union doesn’t attract much attention when there isn’t a contract to be negotiated, it’s a major player within the Rio Grande Valley’s largest police department, which has 275 certified police positions. The union’s contract sets pay and benefits, and the union provides work-related legal services to members.

In the wake of the contract losses, the new union president "said he wants to build closer ties between the police union and the public, in part to improve the image of public employee unions, which have been under attack nationwide." McAllen snubbing the union in contract negotiations is a notable contrast to the way elected officials from both parties in recent years have kowtowed to police unions in larger cities. Being a "right to work" state, Texas has few strong unions anymore in the private sector and our public-sector unions are incredibly weak compared to those in other large states. (E.g., our prison guards are virtually unorganized and unconsidered compared to their powerhouse counterparts in California.) As a result, police unions in Texas elections often are the only union interest with significant political muscle, money to spend, etc..

These unions - particularly those under the CLEAT umbrella - historically in Texas have tended to garner bipartisan fealty among politicians at all levels. I understand why Democrats strongly support unions; less so why Rick Perry does, except to associate himself generally with law enforcement. In Austin, then-Mayor Kirk Watson's extravagant handouts to the police union were the driver for a decade and counting of continuous property-tax growth since the turn of the century, with more of the same projected in the foreseeable future. From the 30,000 foot level, there's a growing resistance by taxpayers to paying - usually through local property tax hikes - for the kind of lucrative pay and benefit packages they themselves lost to corporate restructuring and the recession.

Like the new McAllen police-union president, ever since the budget fights in Wisconsin Grits has been wondering if and when anti-public employee sentiment within the conservative movement might bubble up as feuding with local police associations. To hear CLEAT Executive Director John Burpo tell it, the fight is already here, and the barbarians are at the gates:

A little background is in order. From the 1960’s to just a few years ago, law enforcement pensions were improved significantly and then maintained. Law enforcement officers and their unions advanced and state legislators pushed the proposition that policing is a tough, dangerous job that deserves decent retirement benefits greater than other public employees.

Unfortunately, private sector unions have declined significantly over the last 20 years, and with that decline there has been an attendant decline in private sector defined pension benefits. The majority of private sector employees no longer have retirement plans – they are now fortunate to even have a 401(k) and a meager contribution by the employer. Sadly, most folks in the law enforcement world did not pay attention to this development because it was their problem, not ours.

In the past 2 years public sector pension plans have come under attack, including law enforcement retirements. These attacks have taken place in other states so once again, it was their problem and Texas law enforcement officers didn’t worry.

But it is definitely now our problem as antiretirement forces are on the march right here in Texas. A cabal of anti-union, anti-public employee businessmen out of Houston are leading the charge to take away your long held and much deserved retirement rights. This cabal doesn’t care that each one of you lays your life on the line every day; or that the Memorial Wall on the State Capitol grounds is filled with the names of heroic law enforcement officers who have sacrificed their lives protecting Texas citizens.

CLEAT will lead the fight to take on these Forces of Darkness. We have a battle plan that is eloquently outlined in Todd Harrison’s article on page 2 of this edition of The Police Star (pdf). Please take the time to read this important article so that you understand what we will be doing over the course of the next 2 years.

I find Burpo's language wonderfully hyperbolic, if sadly typical of much internal police-union rhetoric: Anyone with a different opinion on something they care about is generally considered by CLEAT to be part of the "Forces of Darkness," which in this case includes a "cabal of anti-union, anti-public employee businessmen out of Houston." Who knew? A shadowy cabal! Throw in a few references to the Trilateral Commission and the Bilderberg Group and he could write for Alex Jones.

The schtick about dangerous jobs will only get them so far when garbage collectors, whose jobs are statistically far more dangerous, are paid much less and get no comparable memorial on the capitol grounds. (In 2009, according to the most recent Census of Fatal Occupational Injuries (pdf), "refuse and recyclable materials collectors" died on the job at a rate of 26.5 per 100,000, compared to 12.9 for "Police and Sheriff's patrol officers.")

CLEAT's plan includes backing electoral opponents to run against incumbents who support restructuring retirement benefits (through their PAC), extensive polling to craft messages that will sell with the public, creating a "Truth Squad" to quickly attack critics who question the viability of large police pensions, fundraising for their PAC (surprise, surprise!), and engaging union locals in their message delivery. The plan, or at least its public, fundraising-letter version, notably does not contemplate any path to compromise on the kinds of issues (ethics, accountability, public information) that might demonstrate the union's commitment to the sort of professionalism expected of government workers who make more money and have better pensions than the average voter. Instead, the plan is to attack anyone who questions them.

In McAllen, the city manager said part of the union's trouble was a simlar us-against-the-world mentality:

City Manager Mike Perez said the relationship between the police union and city leaders has been “rough at best.”

“I think the approach they take is: City Hall is the enemy,” Perez said. “The fact that they’ve gotten involved in politics and supported candidates hasn’t helped the relationship.”

Perez said he’s heard second- and third-hand reports that officers thought Garcia wasn’t tough enough on City Hall, and backed Alvarado because he’d take a harder stance.

When the GOP took over Texas state politics, police-union interests never missed a beat and continued to wield significant power, thanks in large part to their influence with Rick Perry and the advisers surrounding him (as well as a few, key, senior legislators, many of whom have now departed). Will that continue to be the case as a radicalized GOP base sends more Tea-Party types - Burpo's "Forces of Darkness" - to the legislature and city councils? Or will the police unions, perhaps for the first time in a generation, finally be forced to learn the art of compromise, both at the capitol and at city hall? Time will tell.

Mt. Pleasant bail bond board lets industry write its own forms

In Mount Pleasant, Grits was interested to see a debate covered at the local bail bond board over whether Titus County should create its own forms for "Surrender of Principal," or use forms supplied to them by the bail bond industry, which they lamentably ended up doing ("Bail bond board works on new documentation," Jan. 7).

There was a long discussion on a standardized format for the formal document required for the Surrender of a Principal. In the end, the board decided not to use a form of its own, but agreed to let bondsmen use standard forms designed by their professional association.

Surrender of Principal is the legal term for canceling a bail bond. County Judge Brian Lee noted it is used most often when the subject may already in jail, prison, or dead.

[District] Attorney Charles Bailey expressed concerns over the forms as presented to the bail bond board members. If the board mandates county bondsmen use their forms, it could be construed “as practicing law without a license,” said Bailey.

Kellye Cooper with AAA Bail Bonds said bondsmen have been using a standard form for many years.

We don't know from the story what are the terms in either the industry form or the one prepared by the county; there's some likely-economic reason the bondsmen prefer their contract to the one produced by staff. Is the industry form full of loopholes or other favorable provisions? ¿Quien sabe? But it seems like an outrageous interpretation to say that a local bail bond board, which was expressly created to regulate the local bail industry, can't even create their own forms without being accused of "practicing law without a license." Bizarre - isn't the DA sitting in the room as counsel? I'm not a lawyer, but I've never heard of any such concern. Regulatory bodies everywhere, in all walks of life, create their own forms instead of letting the regulated industry write them, which strikes Grits as an essentially corrupt process.

When Wall Street writes its own regulations, we've seen what happens. The same risk exists for the bail bond industry, which is why I"m skeptical of such self-regulation. In Dallas, for example, Morning News reporters figured out that bond companies were filing phony rearrest reports  in which they falsely claimed to have recaptured defendants who'd skipped in order to avoid paying what they owed. And you're going to let them write their own forms, too?

When an industry controls the regulatory body that's supposed to govern it, that's a corrupt system, even if nobody was paid off (and Grits is alleging no such improprieties). And there's little greater form of control than an industry being empowered to literally put in place forms from their industry association instead of having the regulatory agency prepare them. The devil's in the details and I haven't seen the two forms for comparison, but from a distance the episode seems troublesome. Why even have local bail bond boards at all if the industry gets to write the rules themselves?

Williamson County prosecutors playing defense

Williamson County District Judge Ken Anderson, reports Chuck Lindell at the Austin Statesman, filed a brief with the court which "accused [exoneree Michael] Morton's lawyers of employing falsehoods, incomplete facts and an incorrect reading of trial records to accuse Anderson of hiding evidence that could have spared Morton from a receiving a life sentence for a crime he did not commit." See Anderson’s brief here (pdf) and accompanying exhibits here (pdf).

Meanwhile Williamson County DA John Bradley is reportedly out blockwalking for his campaign, just as Wilco Watchdog has discovered the internet treasure trove that is the incumbent's collection of 7,500+ posts at the Texas District and County Attorneys Association's user forum, posting a comparison of Bradley's public media statements about disclosing exculpatory evidence with his running commentary among friends on the TDCAA site. My favorite bit: In a brilliant moment of understatement, one forum user responded to Bradley's authoritative disdain for handing over exculpatory evidence with the observation, “The contention that there is no constitutional obligation to turn over exculpatory evidence when the defendant pleads guilty seems highly dubious.” Dubious, indeed! Regrettably, the blogger doesn't provide permalinks for the quotes, though I'd read most or all of it before. See the full Watchdog post for more.

For those who haven't seen it, if you're a regular Grits reader and are interested in the topics this blog covers, I encourage reading the TDCAA forum purely for its entertainment value, as evidenced by the quotes pulled out by the Watchdog. (Their site appears to be inexplicably down, hopefully not in order to expunge years of dialogue as a result of the Watchdog's post!) A lot of interesting discussions happen at the TDCAA user forum on subjects I don't see addressed anywhere else, for good and sometimes for ill. One caveat: Before ever quoting the forum, as the Watchdog did, always get a screen shot or cut and paste the string into a separate document. Mr. Bradley in particular, but other forum participants, too, have been known to change or delete comments when they were cited in the media.

The primary battle for Williamson County DA this year is shaping up to be a real hoot!

See related Grits posts:

• As predicted: State bar dismisses grievance against John Bradley from Morton case
• Justice and Prosecutorial Misconduct
• Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration
• Roundup: Coverage of prosecutorial misconduct in the Michael Morton case
• Holding judges accountable for past misconduct: William Adams and Ken Anderson
• Roundup of Williamson County prosecutorial misconduct fiasco
• On the road to Damascus: The conversion of John Bradley
• Editorials: Weak state bar has failed in oversight role on prosecutor misconduct
• Bradley, Anderson engaged in 'heated discussion' after Michael Morton exoneration
• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• Stare bar will investigate prosecutor misconduct in Michael Morton case
• Unable to squelch prosecutor misconduct allegations, John Bradley passes them off to AG
• John Bradley tries to short-circuit investigation into prosecutor misconduct in Michael Morton case
• John Bradley facing local, national criticism now that Michael Morton formally exonerated
• State Bar should sanction prosecutor from Michael Morton case but almost certainly won't

2011 retrospectives look at criminal justice stories, x 10

See Jordan Smith's Top Ten Criminal Justice stories of 2011 at the Austin Chronicle, which has some crossover but quite a few differences (in part due to geographic focus) from Grits list of the ten biggest Texas criminal justice stories of the year. The website The Crime Report published a similar ten-stories list with a national focus. Relatedly, Jordan Smith also has a top-ten list of the biggest marijuana-related stories, and Phil Smith from Stop the Drug War has a list the top ten national drug-war stories. A good set of links to have if you like your news retrospectives to come in multiples of ten.

Good blogging by others

Several posts from other Texas blogs related to topics sometimes discussed on Grits deserve readers' attention:

Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world.  Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.

Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."

Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:

• New development in seeking DNA testing in Lake Waco murders for sole surviving defendant (other defendant David Spence already executed)
• Did George W. Bush execute an innocent person: David Wayne Spence?

While I'm interested in this case, regular readers know Grits doesn't believe "proving" an innocent person was executed will be the silver bullet many death-penalty abolitionists hope. Moreover, I've learned from harsh experience that one never knows what the results of DNA testing will be until it comes back from the lab. If the two men convicted are actually innocent, for the sake of the remaining fellow I hope the DNA can prove it; if they were guilty, I hope that's proven, too. The worst outcome where a past execution is involved would be if the tests came back inconclusive (as happens, I'm told, about a third of the time) or if DA Abel Reyna were to succeed (as seems unlikely) in his effort to suppress DNA testing. You don't want more cases hanging out there like Todd Willingham's where unresolved doubts linger forever, undermining public confidence almost more than if the execution of an innocent had been definitively proven.

Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.

Growth in 'forensic' commitments exacerbate budget pressure on state mental hospitals

I ran across a "legislative primer" (pdf) published in February 2011 by Legislative Budget Board that I hadn't seen before which included this notable excerpt about the growth in demand for forensic beds at Texas state mental hospitals.

INCREASING FORENSIC POPULATION

According to DSHS, the forensic population in SMHs [state mental hospitals] is increasing. The role of the SMH in the treatment of forensic patients has expanded in recent years as some SMHs have experienced a significant increase in the number of forensic patients they serve. As described earlier a forensic patient is one who is admitted to a SMH by judicial order because they have been determined unfit to stand trial or found not guilty by reason of insanity. Some of the forensic patients who are in SMHs for competency restoration have been accused of minor crimes such as trespassing and misdemeanor assault. In fiscal year 2010, the total number of beds at SMHs was 2,461 including 1,558 civil beds and 903 forensic beds....

Forensic commitments generally involve longer lengths of stays in the SMHs. According to DSHS, the average length of stay for a non-forensic patient is less than 30 days compared to more than 30 days and often more than 90 days for forensic patients.

As of December 14, 2010 there were a total of 282 persons on waiting lists at SMHs for forensic beds. According to DSHS, the wait for a forensic bed can be as long as six months in jail for some nonviolent offenders needing inpatient services. These long wait periods can have a negative effect on the forensic patients’ mental conditions.

Longer wait times and longer lengths of stay at the SMHs before a forensic patient is declared competent may result in offenders waiting in jail longer for competency restoration than their sentence would be if they were convicted. It is likely that before some forensic patients have had their competency restored, they have already served the maximum amount of jail time for sometimes minor criminal offenses and are released without sufficient on-going mental health services or resources. This situation may contribute to re-offending and cycling back into the judicial system.

Further, driven largely by the increased number of forensic beds: "SMHs have seen an increase in the average lengths of patient stay. The average length of stay at discharge from SMHs for each fiscal year were 44.5 days in fiscal year 2006, 43.5 days in fiscal year 2007, 47.3 days in fiscal year 2008, 46.3 days in fiscal year 2009 and 51.5 days in fiscal year 2010. The average length of stay increased 15.7 percent when comparing fiscal year 2006 to fiscal year 2010."

Legislation approved last year (HB 2725 by Will Hartnett, who will be missed upon his retirement) ordered judges to count time on the waiting list for restoration services against defendants' ultimate sentence, making it easier to get charges dismissed when time spent incarcerated reaches the maximum sentence length. The bill gave jails a back-end release valve for less serious cases, but it didn't even pretend to resolve the underlying trend. As judges have lately begun to order forensic commitments regardless of waiting lists, the situation in the near term will only worsen.

Lege raided red-light revenue, shorting trauma center hospitals

Money from red-light cameras designated for Texas trauma hospitals isn't actually making it to the intended recipient, the Dallas News reported yesterday ("Texas lawmakers sit on red-light revenue dedicated to trauma centers"):

The law directs a portion of fines generated by the cameras toward trauma centers. But instead of helping hospitals, the money is simply piling up in Austin.

The $46 million pot earmarked for hospitals is helping lawmakers certify a balanced budget even though much of the money in state accounts can’t be used for general expenses. It’s an accounting trick that has been used for years and defended by budget writers who say such maneuvers are necessary in lean times.

Budget writers face a choice: They either have to cut spending or reduce appropriations, said Steven Polunsky, spokesman for Sen. John Carona, R-Dallas, who wrote the bill that set aside red-light camera funds for trauma centers.

“In the past, the state has appropriated trauma funds,” Polunsky said. “However, the state was in a difficult budgetary situation.”

In their last session, lawmakers set a record by refusing to spend $4.1 billion raised from earmarked fees and taxes. The programs that suffer include electricity discounts for the poor and, in the case of red-light ticket revenue, trauma centers.

While Greyson was among those who lobbied for red-light cameras, critics of the law say the state’s refusal to let go of the money is another reason for repeal.

“This is just another lie we were told,” said Byron Schirmbeck of Baytown, who successfully petitioned to get the cameras removed from his city. “They sell the system to the public by saying that all this money will come back to the community — to the trauma centers. But the state is holding on to the money.”

The Lege cut its line-item appropriation for trauma centers by 23% in 2011, so the loss of red-light camera revenue pales in comparison to their overall shortfall (and likely is a subset of the larger number), but it's still notable that they hijacked a dedicated revenue stream. This is one of the valid reasons why the "no new taxes" crowd opposes tax hikes, etc., across the board. Even when the supposed justification is "dedicated" to a good cause, like trauma centers, in practice they divert the money whenever they want.

Grits queried DPS this a.m. to clarify the precise extent to which the Lege did the same thing with revenue from the Driver Responsibility surcharge, so stay tuned for a followup on these themes.