Odds and ends: Successes, failures, and general weirdness

Here are a few items that caught my attention this week but haven't made it into individual posts:

Constitutional challenge to 'improper photography' statute
Reported KDFW TV in Dallas, "An appeals court in San Antonio ruled the improper photography statute unconstitutional because it is overly broad and that violates our First Amendment rights.  The case is now before the Texas Court of Criminal Appeals waiting for a final ruling." See prior Grits coverage.

Crappy, unaccountable judges a 'fact of life' in Texas
Reported the Houston Chronicle:

Court reformers say bad judges are a fact of life in Texas, one of only eight states that uses partisan elections to pick its arbiters of justice. They say it is a system that results in unqualified candidates getting swept into office with political cycles and in qualified judges getting booted out for no good reason ­- or not wanting to run in the first place. 

Lawyers also are critical of how rarely Texas judges are publicly disciplined or removed from office once they get there, while some legal scholars note how loosely courts are administered here.

There are some good ones, too, but it's hard to argue with that assessment.

Man with most to lose: Change nothing
A Travis County lawyer who averages 615 appointed indigent criminal cases per year - the most of any attorney and well above the American Bar Association's recommended caseloads - says he sees no need to overhaul the indigent defense system, naturally.

'Bernie' released into custody of movie director
Bernie Tiede, the East Texas murderer who was the subject of an eponymous, dark comedic feature film by Austin-based director Richard Linklater, has been released on bond on the condition that he live at Linklater's house. Surreal, huh?

Gambling, what gambling?
A pair of Johnson County Sheriff's deputies were providing security for a racetrack busted by DPS for illegal gambling. Initial news reports say they didn't know what was going on, but then that calls into question their law enforcement acumen, doesn't it?

No more proxy marriages in prison
A new law inadvertently ended the practice of "proxy" marriages by prisoners, some of which involve women they met as pen pals while serving time. I've known ex-prisoners who've enjoyed long, loving marriages with women married by proxy, while other situations don't work out as well, to put it mildly. It's a strange aspect of prison subculture that receives little attention, so I'm not surprised lawmakers never considered it when the Lege passed a statute last spring requiring both parties to be present during a marriage ceremony. "'We didn't realize we were going to open up a can of worms,' said Scott Riling, chief of staff for Rep. Trent Ashby, the Lufkin Republican who authored the bill to prohibit proxy marriages."

Focus on veterans
The Defense and Veterans Affairs and County Affairs committees next week will hold a hearing in San Antonio related to veterans courts and peer-to-peer veterans mental health counseling for justice-involved veterans with mental health issues, PTSD, and traumatic brain injury.

Bexar County jail population edging up, but down from last fall's peak
So says this TV news report.

Hearne cop shot 93-year old woman
Reported the Waco Tribune Herald, "Authorities are investigating the shooting of a 93-year-old woman by a Hearne police officer who was involved in the fatal shooting of a Hearne man in December 2012."

The CIA's Lone Star weapons cache
The CIA has allegedly used a secret weapons depot in Boerne, TX to ship weapons around the world in secret wars dating back to the Bay of Pigs.

Forensic Fails
Business Insider published a good overview of problems facing America's forensic experts and crime labs that illuminate many of the issues facing Texas on the topic.

LBB forum to discuss raising juvenile age, capital public defender, and school discipline

If you'll be in Austin on Friday, this forum sponsored by the Legislative Budget Board (LBB) will cover quite a few relevant, interesting issues:

We would like to remind you we will be hosting a Criminal Justice Forum on Friday, May 9, 2014, in which the LBB will host University Professors. The presentations will highlight some of the research they have conducted in the areas of adult criminal and juvenile justice. The forum will also include opportunities for questions and suggestions for future research from the audience.

 

May 2014 Criminal Justice Forum Details

 

When: May 9, 2014 (1:30 PM-3:00 PM) 

 

What: May 2014 Criminal Justice Forum Guest Presentations: University Professors

• Raising the Age of Juvenile Jurisdiction in Texas from 17 to 18 - Michele Deitch (University of Texas - LBJ School of Public Affairs)
• Judgment and Justice: An Evaluation of the Texas Regional Public Defender for Capital Cases - Dottie Carmichael and Heather Caspers (Texas A&M Public Policy Research Institute) and Joel Lieurance (Texas Indigent Defense Commission)
• The Economic Effects of Exclusionary Discipline on Grade Retention and High School Dropouts - Trey Marchbanks (Texas A&M Public Policy Research Institute)

Where: Robert E. Johnson Conference Center

1501 N. Congress Ave.

Austin, TX 78701

More on Texas PREA compliance

In addition to Grits' brief writeup, a couple of MSM reporters covered yesterday's Texas House County Affairs Committee hearing regarding county jails' compliance with the Prison Rape Elimination Act (PREA), and in particular testimony from the Texas Criminal Justice Coalition's Elizabeth Henneke. See:

• Scripps: Jails could run into problems with federal standards, expert warns, and
• Houston Chronicle: Failure to meet prison rape law could be costly for Texas

The big concern expressed by counties yesterday regarded the PREA requirement for 17 year olds to be housed separately from older prisoners, since under Texas law they're considered adults. But as Scripps reported, "Lawmakers have been considering whether to make 17-year-olds be tried as juveniles instead of being tried as adults in the criminal justice system." Henneke suggested yesterday that, if they go that route, the Lege should also increase the minimum age for incarceration in juvenile detention facilities from 10 to 12 years old to prevent very young kids from being housed with near-grown teenagers. Separating 17 year olds out would be an issue for some county jails, but it's a problem the legislature could resolve for them.

Relatedly, yesterday I received in the mail additional materials in response to Grits' open records request regarding the Texas Department of Criminal Justice's PREA consultant, in particular email correspondence between TDCJ's PREA compliance folks and The Moss Group, which was hired to evaluate agency policies and a handful of extant issues. Nothing groundbreaking here, but reading the correspondence made me even more curious why Gov. Perry would say TDCJ could not comply.

Though Gov. Perry called the consultant's advice "ridiculous," agency officials expressed no such reservations in the documents I received and seemed committed to complying with federal law. In October, a TDCJ PREA compliance specialist wrote that "PREA has been truly embraced by the TDCJ to find itself woven into the policy and procedures of MANY departments" (emphasis in original). So what changed? ¿Quien sabe? Perry's response on this makes no sense to me.

See related Grits posts:

• Potential civil liability for failing to comply with Prison Rape Elimination Act
• Radio news questions Perry PREA stance in light of consultant's report
• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

CCA: 'Reckless,' 'negligent' prosecutors don't merit sanction by courts

The prosecutors association's weekly case summary from last week includes this summary of a new case from the Texas Court of Criminal Appeals which affirmed a judge's decision not to exclude physical evidence withheld from the defense before trial:

Francis v. State

No. PD-0519-13                     4/30/14

Issue:
Did the prosecutor willfully violate a pre-trial discovery order requiring inspection of all physical evidence when, on the first day of trial, she revealed to defense counsel a machete to be entered into evidence when all the information previously available to the defense indicated only a small knife was alleged as a deadly weapon? 

Holding:
No, but only because the trial court didn’t see it that way, and the Court of Criminal Appeals concluded that under these facts, almost absolute deference was owed to the trial court’s implicit conclusion that the prosecutor’s conduct was less than willful. The opinion notes that under the same facts, the trial court could also have found the prosecutor’s actions to be willful and suppressed the evidence. Read the opinion. 

Notably, Judge Tom Price opined in the main ruling that, "Because exclusion of evidence in this context is in the nature of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should exclude evidence on this basis has been made to hinge on "whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.] Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding evidence." 

Indeed, according to the opinion, "the trial court could rationally have concluded that, despite her protestations to the contrary, the prosecutor's behavior constituted 'a calculated effort to frustrate the defense' ... But the trial court was not obliged to draw that conclusion" since her conduct "may have been only reckless, or merely negligent," and the CCA held that "we owe almost absolute deference to the trial court's implicit conclusion that the prosecutor's conduct was less than willful."

Nowhere in the appellate record are we told the name of the prosecutor in question who was either "negligent," "reckless," or in the opinion of Justice Evelyn Keyes from the First Court of Appeals, guilty of willful misconduct. In her dissenting opinion from the First Court, Keyes said she would have held the prosecutor's conduct to be "willful" and excluded the machete as evidence. Keyes noted that:

(1) the machete was not mentioned in any discovery, including the offense report, witness statements, or Thomas’s medical records related to the robbery; (2) the machete’s existence came to light only after defense counsel observed the machete among the State’s exhibits at trial, not as a result of any voluntary act by the prosecutor; (3) the State had possession of the machete for more than one month prior to trial; and (4) the State failed to disclose other evidence it introduced ― threatening telephone calls Francis made to Thomas while in custody―in violation of the discovery order.

Based on that, she concluded, "I would hold that in failing to disclose the existence of the machete in its possession and Thomas’s statement about its use in the course of Francis’s assault on her, the State acted voluntarily and with the specific intent to violate the trial court’s discovery order." The CCA, though, unanimously disagreed, saying that the judge's interpretation trumped the cited evidence.

I find myself wishing once again that appellate courts would name prosecutors when a judge issues an opinion that they willfully withheld evidence or even were "reckless" or "negligent," which seems to be the array of options presented in these two appellate reviews. Indeed, I can't even tell the prosecutor's name from the online information about the case at the trial court level. One reason prosecutors aren't more often held accountable - by the state bar or anybody else - is that nobody but insiders can tell when courts find they've been "reckless," "negligent," or engaged in misconduct. And I'm sure the Harris County DA won't discipline the prosecutor in this circumstance - they'll just call the case a "win" and move on.

UPDATE: In the comments, the defense attorney in the case confirmed that "The trial prosecutor was Gretchen Flader. The presiding judge was Mike Anderson (visiting judge for Marc Carter)."

SCOTUS: 5th Circuit too quick to take cops' word in police shooting case

The US Supreme Court this week reversed the 5th Circuit's grant of summary judgment to Bellaire, TX police Sergeant Jeffrey Cotton who shot a professional baseball player, Robert Tolan, after accusing him of stealing his own car. The high court remanded the case for further evidence gathering, criticizing the trial judge and the 5th Circuit for taking the cops' word about events without considering the plaintiff's side. See SCOTUSBlog's page on the case and coverage from the Houston Chronicle, Think Progress, Prawfsblawg and Harmless Error.

As the Chronicle reported, "Cotton was indicted on a charge of aggravated assault by a public servant by a Harris County grand jury. He was found not guilty at trial in May 2010 and continues to work as a Bellaire police officer." Tolan, for his part, now plays for the Washington Nationals.

Whether or not Tolan prevails, and there's still a long road ahead before he overcomes Cotton's qualified immunity to get the case in front of a jury, the ruling signals that the judge and the 5th Circuit were too quick to credit police accounts without investigating any specific allegations. At that, long-time 5th Circuit watchers could not be surprised.

How best to reduce county jail incarceration for low-level misdemeanors?

At the House County Affairs Committee today, legislators and multiple witnesses appeared to believe that, rather than making citations instead of arrests mandatory for certain Class B misdemeanors like marijuana possession and driving with an invalid license (on the second offense), the state should consider just lowering those offenses from Class Bs to Class Cs. Pot possession and invalid license (DWLI) cases are the big drivers - along with DWIs and family violence cases - of misdemeanor incarceration at county jails, the committee was told.

Class C misdemeanors are punishable by a fine only while Class Bs carry a possible jail sentence, and thus typically involve formal arrest and counties paying for lawyers for indigent defendants. So Class Bs tend to cost counties money while Class Cs are revenue generators.

The committee was charged with evaluating the effectiveness of a 2007 statute allowing law enforcement the discretion to give citations for certain low-level offenses - including pot possession and DWLI - instead of making arrests. But that authority has not been widely adopted - only six counties currently exercise the authority.

To reduce misdemeanor incarceration in county jails, reducing penalty categories for low-level pot possession and DWLI cases makes a lot of sense. As the SA Express News reported Feb. 28, "About 73,611 adults in Texas were arrested last year for marijuana possession, according to Department of Public Safety data, accounting for 59 percent of all drug possession arrests in the state." And the DWLI cases are driven in large part, according to testimony, but the much-detested Driver Responsibility surcharge, which is also the subject of interim legislative hearings. It'd be a much cleaner solution to simply reduce penalty categories for these petty crimes than to rely on a discretionary option which, while popular among counties which have implemented it, judging from today's testimony, seems to have never really taken off.

Relatedly, I've put up a reader poll in the right-hand column asking whether Texas should reduce pot possession charges to a Class C misdemeanor. Let me know what you think.

Arson, shaken baby forensics called into question

A couple of recent academic papers related to areas of disputed forensic science deserve readers' attention. Here are links to the papers and the abstracts:

• A Perfect Storm Brewing for Fire Investigators in Court

The genesis of this piece comes from a trend the authors have observed in three separate but related areas, which we believe are converging into a perfect storm for fire investigators. These are: 1) the ongoing movement by courts across the nation to scrutinize more closely the reliability of expert testimony, 2) a growing apprehension about wrongful convictions stemming from faulty forensic evidence and problems in fire investigations, culminating in the revolutionary report published by the National Academy of Sciences, and; 3) the continuing development of industry standards that are raising the bar for fire investigators. Part I describes each of these forces, and then Part II demonstrates how together they are creating a mounting pressure on fire investigation experts to defend their qualifications and the reliability of their opinions in court, particularly insofar as analyzing the fire scene and interpreting fire patterns is concerned.

• Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction

The emergence of "Shaken Baby Syndrome" presents an object lesson in the dangers that lie at the intersection of science and criminal law. As often occurs in the context of scientific knowledge, understandings of SBS have evolved. We now know that the diagnostic triad — the three neurological symptoms once equated with guilt — does not itself prove beyond a reasonable doubt that an infant was abused nor that the last person with the baby was responsible for the baby’s condition. Nevertheless, our legal system has failed to absorb this new consensus. As a result, innocent parents and caregivers remain incarcerated and, perhaps more perplexingly, triad-based prosecutions continue even to this day.

This is the CONTENTS and INTRODUCTION to "Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice" (Oxford University Press, April 2014). "Flawed Convictions" surveys the scientific, cultural, and legal history of SBS from inception to formal dissolution, exposing extraordinary failings in the criminal justice system’s treatment of what is, in essence, a medical diagnosis of murder. The story of SBS highlights fundamental inadequacies in the legal response to science-dependent prosecution. "Flawed Convictions" proposes a restructuring of the law that confronts the uncertainty of scientific knowledge.

The piece on fire investigations includes an extensive discussion of debates in Texas around arson science. Via CrimProf Blog.

Potential civil liability for failing to comply with Prison Rape Elimination Act

Check out written testimony to the Texas House County Affairs Committee from Texas Criminal Justice Coalition policy attorney Elizabeth Henneke on implementation of the Prison Rape Elimination Act (PREA), particularly at the county level.

One interesting note: Texas received more grant funding for implementing PREA than any other state - about $3.6 million out of $54.4 million in grant expenditures nationally. That includes "Dallas County Juvenile Department ($88,942), Travis County Juvenile Probation Department ($100,000), Atascosa County Juvenile Probation Department ($300,000), Harris County, Texas ($237,693), and Webb County, Texas ($250,000)." 

Her testimony also included an interesting discussion of potential civil liability for facilities that choose not to comply with PREA:

Potential Liability for Failing to Comply With PREA

“PREA does not require State and local facilities to comply with the Department [of Justice]’s standards, nor does it enact a mechanism for the Department to enforce such compliance; instead the statute provides certain incentives for such confinement facilities to implement the standards.”  These incentives include grants to help local facilities come into compliance.  Several Texas counties have already received PREA-related grants:  Dallas County Juvenile Department ($88,942), Travis County Juvenile Probation Department ($100,000), Atascosa County Juvenile Probation Department ($300,000), Harris County, Texas ($237,693), and Webb County, Texas ($250,000).

While the Department of Justice maintains that “[t]he standards are not intended to define the contours of constitutionally required conditions of confinement,” it is highly likely that the PREA standards will inform future civil litigation surrounding prison conditions.  In Farmer v. Brennan, the United State Supreme Court set forth the standard for determining if prison conditions violated the 8^th Amendment. The two-part test adopted by the Supreme Court required the plaintiff to prove (1) that the conditions were cruel and (2) that the government was deliberately indifferent to the conditions facing the inmate.  Prior to PREA, this second prong—deliberate indifference—narrowed the class of claims that litigants were able to bring, because it is extremely difficult for them to prove that a government entity was deliberately indifferent to the conditions facing inmates.  PREA has the potential, however, to change the way this litigation proceeds in the future by providing national standards—supported by extensive evidence-based research, correctional administrator input, public commentary, and other documentation—that suggest what governments must do to provide safe environments for inmates.  Thus, failure to follow these PREA standards could be seen as prima facie evidence of deliberate indifference and may result in plaintiffs succeeding past the initial stages of litigation, substantially increasing litigation costs to facilities that fail to comply with PREA.

Although there is no reliable data available specifically setting forth the costs of litigating these cases in Texas, the National Center for State Courts (NCSC) has developed a model to estimate the costs of civil litigation that resolve at different stages of litigation.

Costs Estimates Per Side of Litigation for Typical Automobile Tort Case

Litigation Stage	Amount expended on attorney’s fees alone for lowest 25%	Amount expended on attorney’s fees alone for highest 75%
Case Initiation	$1000	$7,350
Between Discovery through Formal Negotiations or ADR	$5,000	$36,000
Trial	$18,000	$109,000

This cost model suggests that litigation costs alone may substantially increase for facilities that fail to comply with PREA. It is too early to predict what the costs might be if a plaintiff is successful.  One ex-inmate of Travis County has sued alleging that county and sheriff’s officials displayed deliberate indifference to his safety by failing to comply with PREA; he is seeking $2 million in damages as compensation for the rape he sustained while in the Travis County jail.

Henneke also suggested that raising the age at which youth are incarcerated as adults from 17 to 18 would resolve many of the potential problems and expense of separating out 17-year olds, as PREA requires, as well as raising the age at which juveniles can be incarcerated in juvenile detention facilities from 10 to 12. And she suggested that the Texas Commission on Jail Standards and the Juvenile Justice Department's independent ombudsman should be empowered to perform audits of local detention facilities instead of requiring them to hire their own, outside consultants to perform them.

See related Grits posts:

• Radio news questions Perry PREA stance in light of consultant's report
• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

Sex offender registration shouldn't include 'kidnapping' in child custody disputes

At the Austin Statesman, Chuck Lindell reports ("Texan with no sex crime history protests 'sex offender' label," May 3) that two members of the Texas Court of Criminal Appeals questioned the Legislature's wisdom regarding inclusion of child kidnapping in the sex offender registry when the kidnapping target was the offender's own child in a custody dispute. Here's a notable excerpt

[Suzanne] Kearns’ kidnap victim was her son, whom she took to Mexico in 2002, claiming she needed to protect him from an abusive ex-husband after losing custody of the boy. After three years in hiding, she was arrested and returned to New Braunfels, where she was found guilty of aggravated kidnapping and sentenced to five years in prison.

Freed from prison in 2010, Kearns must register as a sex offender until 2020.

Since 1999, Texas has required child kidnappers to register as sex offenders for 10 years after their release from prison. At least 34 other states, however, exempt parents who take their children in custody disputes, concluding that they pose no threat to other families’ children.

Last month, the Texas Court of Criminal Appeals rejected Kearns’ request to be removed from the registry because her lawsuit had been filed at the wrong time. Although the state’s highest criminal court typically denies such appeals without comment, two judges took the rare step of submitting an opinion questioning the inclusion of child-custody kidnappings in the sex offender registry.

Judge Cathy Cochran suggested that the Texas Legislature might wish to “re-examine whether the kidnapping of one’s own child” meets the central purpose of sex offender registration — improving safety by alerting the public to the risk of sex offenders in their community.

Joined by Judge Cheryl Johnson, Cochran suggested that Texas might want to follow the example of the federal government and the 34 states that have determined that parental kidnapping “is not a sex offense and does not automatically require sex-offender registration.”

This is another example of how the Texas sex-offender registry has become too sweeping and punitive, migrating away from its original intent to inform the public about violent predators. Former state Rep. Ray Allen who authored the provision in question told Lindell, “It’s my opinion now that we threw the net too wide back in the ’90s and brought too many people into the sex offender registry.”

See Cochran's concurring opinion (pdf) for a detailed discussion of the issues raised in the case and background on overreach in the sex-offender registry, driven in part by federal statutes that threatened to reduce grant funding to states if they didn't expand the registry's scope. Suggesting the provision "may be the result of an unintentional legislative oversight, Cochran concluded:

It is the legislature's prerogative to determine which offenders warrant the additional and more intense supervision of registered sex offenders. But the legislature may reexamine whether the kidnapping of one's own child is consistent with the legitimate and non-punitive purpose of sex offender registration: public safety that is advanced by alerting the public to the risk of sex offenders in their community. Perhaps the Texas Legislature will join the federal government's determination, and the determination of at least thirty-four other states, that kidnapping one's own child is not a sex offense and does not automatically require sex-offender registration.

The Lege needs to follow Judge Cochran's advice and fix this when they re-convene in 2015.

Few guards face charges in cell-phone contraband cases

The Texas Tribune's Edgar Walters today revisited the question of why Texas prison guards are rarely charged in cell-phone contraband cases. Here's a notable excerpt:

A Texas Tribune investigation has found that few inmates or correctional officers face legal consequences for smuggling cellphones even as prison officials have intensified efforts to keep the devices out of prisons. Just 5 percent of cellphone smuggling cases investigated by the Criminal Justice Department’s Office of Inspector General from 2009 to 2013 resulted in a criminal sentence, according to documents obtained from the office through a public information request. 

Prison officials said one challenge was linking the smuggled phones to prisoners or correctional officers for prosecution, because the devices were secreted away in spots that were hard to find, or found in common areas. And it falls to prosecutors in the rural, cash-strapped regions where prisons are typically located to decide whether to spend resources on criminals who are already in prison or on local law enforcement officers. Critics say that without serious consequences, there is little to stanch the flow of illicit cellphones — and the cash that goes with them — into Texas prisons.

“Phones can be hard to find, and there’s a lot of money in introducing contraband,” said Terry Pelz, a prison consultant and former warden who advocates tougher punishments for guards caught with contraband. ...

Records obtained by the Tribune show that cellphones accounted for the greatest number of contraband cases investigated by the Criminal Justice Department’s inspector general from 2009 to 2013. Yet cases involving other contraband — like alcohol and tobacco — are prosecuted at a higher rate.

Of the 3,687 cellphone cases the inspector general’s office examined during that time, prosecutors secured sentences in only 190 cases; 2,142 resulted in no charge. ...

Some criminal justice observers say leaving that decision to local prosecutors benefits the guards because prisons are typically in rural counties with small prosecution budgets.

“Local prosecutors don’t put the full force of their office up against cases involving officers,” said Brian McGiverin, a prisoners’ rights attorney for the Texas Civil Rights Project.

Pelz added, “These smaller counties don’t necessarily have the money for the wholesale prosecution of these officers, so that’s not much of a deterrent for those who get caught.”

Virginia, Utah, require warrants for phone location data, Tennessee bill awaiting gov's signature

More states have approved legislation requiring law enforcement to obtain warrants to track cell-phone location data, measure that passed the Texas House last year but didn't make it all the way through the process. Reported Tennessee Watchdog (May 2):

Tennessee law enforcement may soon need a warrant before tracking the whereabouts of a suspect’s cell phone.

The Tennessee General Assembly recently passed a bill that bans “a governmental entity or law enforcement agency from obtaining the location information of an electronic device without a search warrant except under certain circumstances.”

As of Monday, the bill was listed as ready to be signed by the speaker of the House and the speaker of the Senate. From there, the bill will be ready for Tennessee Gov. Bill Haslam.

Montana and Maine were charter members of the club of legislatures requiring warrants for cell-phone location data (in New Jersey and Massachusetts, their high courts imposed similar requirements), and this spring two more jurisdictions passed similar bills through the legislative process:

In Virginia, Gov. Terry McAuliffe approved a bill requiring that law enforcement obtain a warrant before tracking the location of a cell phone; the law also takes effect July 1.

Real-time location tracking without a warrant is not the only area state lawmakers are looking to rein in law enforcement agencies.

Utah Gov. Gary R. Herbert signed a bill into law March 31 banning the admission of electronic data collected without a warrant in criminal court proceedings.

The law takes effect July 1.

RELATED: The Next NSA? Police departments under scrutiny for phone, license plate surveillance

Tennessee law enforcement may soon need a warrant before tracking the whereabouts of a suspect’s cell phone.
The Tennessee General Assembly recently passed a bill that bans “a governmental entity or law enforcement agency from obtaining the location information of an electronic device without a search warrant except under certain circumstances.”

GET A WARRANT: Police in Tennessee may soon have to obtain a warrant to track the location of a suspect’s cell phone.

As of Monday, the bill was listed as ready to be signed by the speaker of the House and the speaker of the Senate. From there, the bill will be ready for Tennessee Gov. Bill Haslam.
- See more at: http://tennessee.watchdog.org/2014/05/02/tn-ban-on-warrantless-cell-phone-tracking-awaits-governors-signature/#sthash.bDbFdOPq.dpuf

'Waiving the criminal justice system'

There's an interesting looking paper on SSRN from a UT-Austin law prof, a  public defender and a law student with the same title as this post. Here's the abstract:

Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where "the criminal justice system is the plea bargaining system." Plea agreements are boilerplate, and the 97% of defendants who enter guilty pleas cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. As we have transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, the government has begun demanding the waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea.

In this essay, we will first describe the growth of two non-trial-related waivers that have not yet been accepted by the Supreme Court - waivers of the due process right to obtain exculpatory evidence as to guilt and punishment, and waivers of the newly-expressed Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. We then offer the results of an empirical project that Professor Susan Klein undertook at the United States Sentencing Commission and a national survey of federal plea agreements conducted by Public Defender Donna Elm. After examining caselaw and practice in the area, we conclude that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

Here's a notable excerpt:

our modern criminal justice system consists of one government official—the prosecutor—unilaterally making most significant decisions. Criminal matters are resolved by plea rather than trial, and procedural protections are routinely waived as part of the bargain. Contract principles, rather than constitutional law, govern these agreements. This movement from an adversarial to a de facto administrative regime now seems to us, with our perfect 20-20 hindsight, a foregone conclusion from the combination of resource restraint and the Supreme Court's high tolerance for government coercion. The transformation began in the 1970s when the Court accepted as non-coercive a government offer of a plea to life imprisonment to avoid the death penalty, and a prosecutorial threat of adding a recidivism enhancement with a mandatory-life penalty if the defendant refused to plead guilty to a two to ten year felony. Now that prosecutors are free to threaten suspects with additional and more serious charges, and to offer steep sentencing discounts only to those who will play ball, plea bargains have become the offer a defendant cannot refuse. Prosecutors regularly threaten to give notice of three strikes provisions and other recidivist enhancements, impose mandatory minimums or consecutive sentences, and indict weapons charges with consecutive sentences and other enhancements if defendants refuse to sign on the dotted line. Likewise, prosecutors offer downward departures for substantial assistance, reductions rewarding acceptance of responsibility or remorse, and dismissal of various charges in exchange for the timely plea. Where the charges are misdemeanors, state prosecutors suggest the nearly irresistible trade of allowing a defendant to go home immediately with time served and probation in exchange for a guilty plea.

Not surprisingly, 97% of federal criminal felony convictions were by guilty plea in 2012, while a slightly lower 94% of state criminal felony convictions were by guilty plea in 2006. Considering the more inclusive universe of all cases charged, rather than just the percentage of convictions accomplished by guilty pleas, the percentage drops slightly. Just under 90% of all federal defendants charged with a federal felony pled guilty, and approximately 70% of state defendants charged with felonies pled guilty. While we hope that innocent persons are obtaining those dismissals or acquittals, and the least culpable are pleading to lesser charges, for the overwhelming majority of defendants plea bargaining is no longer done in the shadow of a criminal trial outcome. In fact, the term “bargaining” is a misnomer. Plea agreements are boilerplate, and defendants cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. Over-worked and underpaid defense lawyers frequently do not have the information or the resources to assess the government’s case and accurately predict what the trial outcome might be.

Hand-in-hand with plea-bargaining’s triumph came the spread of waivers. Some prosecutors demanded that criminal defendants “voluntarily” waive every right that the Constitution or state or federal statutes provide as a condition of obtaining a plea agreement. Trial rights necessarily have to be waived to replace the criminal trial with the plea bargain. Thus, the Rules Advisory Committee to the Federal Rules of Criminal Procedure developed a standard list of trial rights a federal criminal defendant must waive, on the record, at her Rule 11 plea colloquy. As we transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, many prosecutors began demanding waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea. Prosecutors developed the bargaining clout to save their offices money and make their convictions unassailable, so they added waiver demands well beyond what was necessary to enter a plea.

First the waiver bug spread from trial rights to appellate rights in the 1980s and 1990s. Though all appellate courts to rule on this issue have accepted them, the Rules Advisory Committee has pointedly offered no opinion as to their constitutionality. Next came habeas corpus waivers, some with exceptions for ineffective assistance of counsel claims and some without any exceptions. Over the last decade, prosecutors began requesting waivers of all discovery materials, including not only impeachment evidence but also exculpatory evidence of actual innocence and claims of prosecutorial misconduct in failing to disclose such materials.

Finally, even before two fractured 2012 Supreme Court cases clearly applying the right to effective defense counsel at the plea negotiation stage and expanding the remedy, a fair number of prosecutors began demanding that a defendant waive her right to effective assistance of counsel in helping her investigate her case and negotiate her plea terms. We will focus on these last two sets of waivers in the rest of this essay, particularly the latter one. We contend that effective assistance of counsel waivers are unjust and will topple our current plea bargaining system, and that therefore the Court and the Department of Justice should refuse to condone them.

This is not an essay castigating the transformation of our current criminal justice system, as we have described it above. Our plea regime is not necessarily worse than the system it replaced. The majority of criminal defendants are guilty of some crime, and encouraging those defendants to plead guilty saves judicial and government resources. There is significant scholarly disagreement on the advantages of plea-bargaining, and our essay is not the venue to resolve this dispute. We merely note that there is no feasible return to our former system of trials. Once we accept that, we must be willing to regulate it, or the executive branches of the government will fill the vacuum with rules favorable to it. A mandatory plea bargaining system where the kind of deal received is fortuitous depending upon quality of prosecutor and defense attorney assigned, rather than level of guilt, leads to unequal sentences for similarly situated defendants and, in rare cases, the conviction of the innocent. Five Justices of the Supreme Court recognized this last term in two decisions, Lafler v. Cooper and Missouri v. Frye, that we believe indicate a willingness to monitor the plea-bargaining process. Much of the clear inequities in our current system can be mitigated by better discovery and more effective counsel at the plea stage.  (Citations omitted.)

Committee to evaluate implementation of cite-and-summons statute

The Texas House County Affairs Committee on Monday will consider a couple of criminal-justice related interim charges that may interest Grits readers:

• Continue oversight of the Texas Commission on Jail Standards and issues jails currently face, including the mental health of those in jail, and make recommendations for refinement or improvement of processes and programs.
• Determine which counties have implemented a cite-and-summons policy, whether the policy has been effective in lessening overcrowding in county jails, and whether those cited by peace officers comply with the policy.

Grits will be particularly interested in the evaluation of the cite-and-summons policy. The hearing will be broadcast online beginning at 10 a.m. Monday morning.

See prior, related Grits posts:

• Hays County will use expanded citation authority to reduce jail overcrowding
• Austin PD will finally implement citations for petty misdemeanors
• Smart policies can boost police coverage even in tight economy
• Long booking times a strong argument for police using new citation authority
• APD finally implementing B misdemeanor citation policy
• Police union backs using citation authority at Austin PD
• Nuts and bolts of citations for low-level misdemeanors explained by Travis Sheriff's Office
• On the source of volitional jail overcrowding in Bexar County: Why solve a problem when you can create one?
• Tyler officials should listen to voters, use new tools to reduce jail overcrowding
• Sheriffs more likely than PDs to welcome new arrest discretion
• Jefferson County works out kinks with new cite and summons authority
• How one Texas county will take advantage of new law to reduce jail overcrowding
• HB 2391 could save Bexar taxpayers $10,000 per day
• Cite and summons for low-level offenses could free up jail space
• Texas Lege approved new tools to reduce jail overcrowding, if police can change their thinking

Should Texas create a statewide public defender for forensic writs?

Texas should consider creating a statewide public defender office to handle habeas corpus writs related to flawed forensics, an adviser to Gov. Rick Perry told the Court of Criminal Appeals' Criminal Justice Integrity Unit Thursday afternoon.

Judge Barbara Hervey convened the meeting to discuss "Notification in the wake of an 'irregularity' in a criminal case," a reference to forensic snafus like the Jonathan Salvador fiasco and the ongoing hair and fiber review by the Forensic Science Commission. Out of those situations, the question arises, how should affected parties be notified of large-scale forensic errors and who should represent defendants in the habeas corpus process? (See Grits coverage of a "white paper" on the topic from the integrity unit and the Forensic Science Commission published last year.)

It's impossible to rely on defendants' original attorneys, most participants agreed, particularly in older cases and where lawyers represented them on an appointed basis, often for just a few hundred dollars. And even if you're able to find defendants and notify them, without representation that won't get their cases re-opened.

At present, these decisions are made on a completely ad hoc basis. In the Jonathan Salvador situation, which involved cases in more than 30 counties, judges in some jurisdictions appointed habeas counsel in every affected case while, in others, it's unclear if defendants were even notified and for most, counsel was never appointed.

Regular readers know Grits considers this one of the most vexing issues facing the criminal justice system. In the wake of the 2009 National Academy of Sciences report calling into question the scientific basis for many traditional forensic disciplines, it's clear this issue isn't just a one-off related to Jonathan Salvador, arson cases or hair-and-fiber cases but is something that will come up again and again over the next decade or two. But Texas and other states, and for that matter the feds, don't have systems in place to deal with correcting errors in old cases, Judge Hervey told the packed courtroom today.

This is uncharted territory and nobody has a clear idea how to handle such situations or what mechanisms should be created to process such cases en masse. In the Salvador case, potentially hundreds or even thousands of cases were processed based on analyses by a discredited lab analyst, but the evidence is now unavailable to be retested. The Court of Criminal Appeals has ruled that Salvador's work should be presumed invalid, but said the presumption could be rebutted by new testing or additional evidence. But outside of Harris and Galveston counties, few such cases are going forward and there's no standardized process for how to deal with them.

Integrity unit member Mary Ann Wiley from the governor's office surprised many in the room by suggesting that the state should consider creating a public defender office to handle such writs modeled on the successful Office of Capital Writs that handles habeas corpus in indigent death-penalty cases. That would solve a ton of problems, centralizing the process and guaranteeing someone takes responsibility for notifying defendants and filing habeas corpus writs where appropriate.

Indeed, there's an argument that a public defender for writs is needed for cases beyond just forensic issues. Bob Wicoff of the Harris County Public Defender Office pointed out the need for writ representation to challenge convictions based on the recently-deemed-unconstitutional online solicitation of a minor statute. And Judge Hervey pointed out that there could be Brady issues where large-scale notice and representation may be needed.

Few criminal defense lawyers have experience with habeas corpus processes and the Court of Criminal Appeals is all but overwhelmed with the volume of writs they receive, mostly from pro se (self-represented) prisoners, often hand-written and inexpertly crafted. Professionalizing that process would be a boon on many fronts. It may be politically impractical to provide a public defender for all habeas writs, but for situations affecting multiple defendants, whether over forensic issues, Brady violations, or other large-scale "irregularities," or it makes a lot of sense.

Today's meeting was one of the most productive, probative sessions of the CCA's integrity unit I've attended, which is nearly all of them. Judge Hervey got a good group together and led a meaningful discussion that could result in real change down the line. Texas is way ahead of other states on this topic, as far as I can tell, and this meeting offered some meaty suggestions for the Legislature to consider when it convenes again in 2015.

Corrupt South Texas drug cops sentenced

A team of corrupt Hidalgo County deputies and the son of the former Hidalgo Sheriff were sentenced to federal prison this week, concluding a disgraceful episode in which they protected drug shipments, robbed drug couriers and engaged in other crimes under the color of law enforcement. Here's a notable excerpt from the McAllen Monitor (April 30):

The Panama Unit corruption scandal started and ended with Jonathan Treviño.

On Wednesday afternoon, U.S. District Judge Randy Crane sentenced former Mission police Investigator Jonathan Treviño — the youngest son of Hidalgo County Sheriff Lupe Treviño, who himself resigned and pleaded guilty to laundering drug money— to 17 years behind bars.

The corruption scandal started with the Panama Unit, an anti-narcotics squad that went rogue, stealing drugs and cash from criminals. Investigators eventually indicted nine Hidalgo County lawmen and three drug traffickers connected with the Panama Unit.

“What you all have done is disgrace us,” Crane said, concluding the nearly five-hour hearing Wednesday on the ninth floor of Bentsen Tower. “And sentencing you to prison isn’t ever going to bring back the damage that has been done to our community, and what people think of the Sheriff’s Office and law enforcement.”

Jonathan Treviño, who turned 30 on Friday, received the harshest sentence. Assistant U.S. Attorney James Sturgis described him as the ringleader, saying he approved all the Panama Unit’s illegal activity and negotiated drug transactions through an intermediary. ...

While technically a partnership between the Mission Police Department and Sheriff’s Office, the only person assigned to the Panama Unit who didn’t ultimately report to Sheriff Treviño was Jonathan Treviño — the sheriff’s son. They gradually went bad, according to court testimony, with small thefts escalating to major narcotics transactions and armed robbery.

Federal agents started making arrests on Dec. 12, 2012, starting with Jonathan Treviño and three other lawmen. The Panama Unit investigation and a related corruption indictment eventually resulted in criminal cases against Sheriff Treviño, the county’s three-term sheriff; Cmdr. Jose Padilla, a top-ranking lawman who helped run the sheriff’s re-election campaigns; and Chief of Staff Pat Medina, the sheriff’s longtime assistant and campaign treasurer.

On Wednesday, the two-day Panama Unit sentencing hearing concluded where the investigation started — with Jonathan Treviño. Along with him, four other disgraced lawmen and a drug trafficker appeared Wednesday in federal court.

Crane handed down prison sentences ranging from 10 to 14 years.

Montgomery Sheriff crashes drone, again, this time sunk in Lake Conroe

When the Montgomery County Sheriff first purchased a quarter-million dollar drone for law enforcement use, they crashed it into a SWAT vehicle during a training run. They repaired or replaced it, but last week they crashed it again, this time sinking it into Lake Conroe. On Monday, a department spokesman told reporters, "Divers did go down to look for it. They are still looking. It went down in deep water where there is a rocky bottom. Visibility is also a problem because of sediment at the bottom of the lake."

I hate to indulge in schadenfreude, but that cracked me up.

The UAV was covered by insurance, but after crashing it twice, one suspects their carrier may consider raising their rates.

TPPF in the news: Reducing technical revocations, clarifying recidivism data

A couple of recent Texas Public Policy Foundation reports got good press coverage this week:

• Texas Tribune: "Lawmakers urged to reform parole with technology"
• Report: Cutting Edge Corrections: Using technology to improve community supervision in Texas

and

• Texas Observer: "The conservative case against locking up minors"
• Report: Kids doing time for what's not a crime: The over-incarceration of status offenders

Good idea on reducing technical probation revocations
In the report on supervision tech, I particularly liked this suggestion for reducing incarceration based on technical violations of petty absconders:

Currently, there are more than 24,000 felony probation absconders in Texas. While they may succeed for a time in skirting their obligations to report to a probation officer when they are pulled over for a traffic violation or are otherwise apprehended, they will face the prospect of being revoked to prison. At least 35 percent of probationers revoked for technical violations (where there is no allegation of a new offense) were classified as absconders at the time. Based on the 12,287 total technical revocations in 2013, this amounts to at least 4,300 technical revocations associated with absconders, which translates into annual incarceration costs of $79 million, not counting the compounding effect over time as the revocation time served will exceed a year in most cases.

This analysis demonstrates the potential of utilizing GPS to reduce the number of technical revocations. Given that any type of GPS monitoring costs a fraction of the $50.49 per day prison cost,  it is a particularly sensible option for those who were placed on probation for a non-violent offense and have failed to report, but are not assessed as a high risk of re-offending. (Citations omitted.)

Recidivism clarification
In the comments to the Trib story, I offered one minor but important correction. The reporter had written that "Sixty-two percent of all Texas inmates return to prison within three years of their release. But that's not quite right.

Looking at the TPPF report, it says 62% of state jail inmates, not "all Texas inmates" are rearrested within three years, not "return to prison." State jail inmates have the highest recidivism rates of all prisoners, in part because they serve sentences day for day and leave without any post-incarceration supervision.

According to the Legislative Budget Board's latest report on the topic titled "Statewide Criminal Justice Recidivism and Revocation Rates" (pdf), the percentage of Texas prisoners who return to prison after three years was 22.6% for the most recent cohort - far lower than the national average. Among state jail inmates the number returning to prison is slightly higher - 31.1%.

The difference between rearrest and re-incarceration numbers is significant. After all, in Texas you can be arrested for a Class C misdemeanor, so many ex-offenders who are rearrested for minor offenses within three years of release do not actually return to prison.

UPDATE: The Tribune has updated its story to correct the error.

Travis County Jail recorded attorney-client phone calls, gave them to prosecutors

When the Travis County Jail installed video visitation technology and ceased the practice of in-person visitation, they promised that attorneys conversations wouldn't be recorded. Turned out, that's not always true. Reported the Austin Statesman ("Lawsuit: Travis County inmates' calls to defense lawyers were recorded, shared with prosecutors," April 29):

A group of Austin defense lawyers and prisoners is suing the top law enforcement agencies in Travis County, alleging the private Dallas firm hired to tape inmate visits at county jails is illegally capturing their conversations with attorneys and turning over the recordings to prosecutors.

The Austin Lawyers Guild, the Prison Justice League and several independent defense attorneys are seeking that a federal judge order authorities to stop the practice, which they call “unconstitutional eavesdropping and an invasion of attorney-client communication,” according to the lawsuit filed Tuesday in a U.S. district court in Austin. They say they also want the sheriff’s office and Securus Technology Inc. to destroy all the copies of such phone and jail calls already in existence, which could number in the thousands.

Named in the suit were the Sheriff, the vendor Securus Technologies, and the district and county attorneys offices.

Both parties claim visits between defendants and their legal counsel are secure, completely confidential and not recorded, as protected by attorney-client privilege, the lawsuit states. But prosecutors at both the district attorney’s office and the county attorney’s office have procured copies of the private conversations, some of which have been disclosed to defense lawyers among discovery materials, according to the court records.

Judges say the recordings are automatically deemed inadmissible as evidence in court, but the lawsuit alleges some prosecutors are using them to prepare their cases — sometimes to their tactical advantage without admitting they obtained or listened to them.

The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there's no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”

Similar allegations were lodged against Securus two years ago in Alaska. In Massachussetts, evidence from attorney-client phone calls recorded by Securus was suppressed in a 2006 criminal case. In 2008, NBC News reported that, "In the past two years, privileged conversations between inmates and lawyers have been recorded in Alameda, Santa Clara and Riverside counties in California, as well as Broward County, Fla.; Lansing, Mich.; and Dallas," as well as San Diego, CA.

Since all these were alleged accidents, according to Securus, which in each case promised to implement procedures to keep it from happening again, the assurances that this practice will definitively stop ring somewhat hollow. If nothing else, Travis County should begin providing attorneys with a comprehensive list of calls to and from their client that were monitored or recorded. "Trust us, we're the government" isn't a good enough response given that recorded attorney conversations have already turned up in prosecutors' files.

MORE: From the Courthouse News Service, and see earlier coverage from the Austin Monitor. Here's a copy of the complaint filed yesterday in federal court.

Estimating innocence among defendants sentenced to death row

Lots of press today about a new article from the Proceedings of the National Academy of Sciences titled "Rate of false conviction of criminal defendants sentenced to death." The study's abstract reads:

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

AP reports that, nationally, “From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence.” This study attempts to extrapolate using statistical analysis how many other actually innocent defendants had their death sentence eliminated but were never formally exonerated, boosting the total to 4.1 percent. Noted AP, "The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row."

From what I know about rates of wrongful convictions, that doesn't sound unreasonable to me. I personally believe Texas has executed one or more innocent people over the last three decades, and numerous others have been exonerated after spending time on death row. Others, like Clarence Brandley and Kerry Max Cook, were freed from death row but never formerly exonerated. Indeed, it may be that high-profile death penalty cases have higher false conviction rates than others because of the intense pressure on prosecutors and judges to convict, though there are also plenty of false convictions in lesser cases. Either way, it's almost certain that false convictions in death penalty cases are more likely to be discovered after the fact because of the rigorous examination they receive during the habeas corpus process that almost never occurs for cases that end in a "mere" prison sentence.

That said, many death penalty abolitionists believe that these sorts of analyses may sway the public to oppose capital punishment, a position that simply isn't supported by the data. Among people who believe an innocent person has already been executed, a solid majority support capital punishment. Identifying people wrongfully sent to death row helps impress upon the public the import of rectifying flaws in the justice system that contribute to false convictions. But IMO, especially in Texas, it won't be any sort of silver bullet that convinces people to oppose the death penalty.

Judge: Driver Responsibility surcharge unfair, 'unconstitutional'

Another judge critical of Texas' Driver Responsibility surcharge, via a Lubbock TV station:

Lubbock County Justice of the Peace Jim Hansen is one of the many Texas judges working to get this law abolished.

"Because what a surcharge represents, it's double jeopardy and it's unconstitutional. You are being punished over and over and over again for the same one offense," Hansen said.

Surcharges are racked up based on convictions. Such as a DWI, or driving without valid insurance or a drivers license.

"This has created a whole new criminal class of citizens in Lubbock County," Hansen said. "I would estimate we've got about 15,000 people driving today with their drivers license suspended because of the surcharge program. And many, or most, of those don't even know that they're in this criminal class." ...

"Let me put it this way, I despise red light cameras, and I put surcharges in the same category. It's a money scam, in my opinion, even though it funds a worthy cause," Hansen said.

RELATED:
Radio discussion of Driver Responsibility surcharge
Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions