Innocence, private prisons, overly punitive sex-offender laws, and more

Just a few items I wanted to point out from other sources:

First, sorry to see Paul Kennedy put his fine blog, The Defense Rests, on hiatus. He had great posts there regularly right up to the end. Paul, good luck with all you've got on your plate. Your blog will be missed. I hope you decide to pick it up again someday.

I checked in at Texas Monthly's website for the first time in a while and was pleased to find three innocence-related items on their home page, a couple of which I'd linked to in roundups before:

• 'I believe it's a heroic calling,' an interview by Michael Hall with SA4 lawyers Mike Ware and Keith Hampton
• Michael Morton's life in prison, in his own words, and
• Anthony Graves' prosecutor finally has to answer for his actions

With Michael Hall, Pam Colloff and Nate Blakeslee on staff, one would expect TM to be strong in this area and they consistently are. Good stuff.

Texas Prison Bidness also has some notable new posts:

• Grasping at straws, Littlefield prison seeks California prisoner contract?
• As family detention begins at Karnes, T. Don Hutto is the site of a protest
• 24-year-old immigrant dies after being held at GEO Group detention center in Laredo
• Investigation underway in Diboll roof collapse
• Family detention will return to Texas at the Karnes Detention Center, southeast of San Antonio
• Rep. Henry Cuellar, beneficiary of GEO Group contributions, wants border children deported ASAP
• Roof collapses at MTC-owned Diboll Correctional Center, trapping and injuring prisoners

And here's some good stuff from Doug Berman's Sentencing Law & Policy blog:

• Is preventing ex-prisoners from being homeless the key to preventing recidivism? 
• "Sex Offender Laws Have Gone Too Far" 
• Early data from Colorado suggest teenage use of marijuana is down since legalization

Finally, read Jim Schutze and Steve Blow from the Dallas Observer and Dallas Morning News, respectively, on counter-productively punitive sex offender residency restrictions.

More from me later, perhaps - lots of writing to do today.

Austin PD wants 20% budget hike to fight less crime, respond to fewer calls

The Austin Police Department wants an astonishing 19.5% budget increase in the coming year to hire more officers, reported the Austin Statesman (Aug. 13), even though, as Council Member Bill Spelman questioned "why the city needs more police officer if crime rates, traffic fatalities and calls for service are down compared with last year," which for the record is a very good question. Chief Art Acevedo said the new officers would go to combat property crime. Because, I guess, that's a new thing.

Grits agrees the department has long needed to improve its focus on property crime, But there are smarter, more creative ways to do that than a 20 percent department-wide budget hike. Why not turn away from failed methods of combating property crime while freeing up officers for more productive crime fighting tasks? Where are the fiscal conservatives when you need them?

Driverless cars would transform the legal profession, law enforcement

At the blog Above the Law, attorney Mark Hermann speculates on the future of the legal profession if and when driverless cars like the one being prototyped by Google ever become a large-scale reality. "Do you do DWI defense work?," he wrote. "Your practice area may not exist in ten years. Do you participate in automotive accident or product liability cases? The world may be about to shift under your feet."

Moreover, "Law enforcement (and the converse — criminality) may be transformed. Can driverless cars be hacked to make kidnapping much simpler? Or packed with explosives to be turned into self-guided bombs? Or simply used as high-speed getaways cars, which will permit the bad guys to shoot at the police while the car navigates its high-speed escape? (To avoid these problems, will we relinquish our right to privacy, permitting our cars to be monitored and our locations always known?)"

Then there's the revolution in liability law brought on by driverless cars:

Needless to say, driverless cars will transport product liability law into a brave new world. Let’s assume that driverless cars are remarkably safe: Instead of the 30,000+ people who now die annually in car accidents in the United States, suppose driverless cars result in a mere 10,000 deaths every year. And assume that the public accepts — as logic dictates, but emotion may not — that saving 20,000 lives per year is an improvement, so driverless cars should be endorsed. Who would bear the cost of those 10,000 fatal accidents? Vehicle owners? Or users? Or manufacturers?

Can we blame the mechanic who repaired a driverless car a few weeks before the crash? Or the hobbyist who got under the hood of his car and tinkered with it?

Grits had a pair of related posts last year wondering aloud how driverless cars might affect law enforcement and the criminal justice system generally. In particular, since most police interactions with the public occur at traffic stops, what will cops do with themselves once there are no more traffic scofflaws to pull over? The era of the pretext stop will have come to an end.

Already the key elements of driverless cars are being implemented in increments. I've seen TV ads for cars that parallel park themselves. According to the latest issue of Popular Mechanics presently sitting on my coffee table, "At speeds of up to 30 mph" the 2015 Subaru Legacy "automatically brakes if a collision is imminent." For the most part I think these changes will be positive, certainly as measured in driver safety. But there will be growing pains and, when the transformation takes place in earnest, it will be as disruptive as anything to law enforcement since the invention of the V-8 engine. You read it here first.

Reshuffling chairs benefits cell-phone privacy bill in Texas Senate

If, like me, you're prone to indulging in political tea-leaf reading, here's some potentially good news for Texans who favor keeping their cell-phone location data private!

In 2013, state Sen. Craig Estes (R) of Wichita Falls and Sen. Juan "Chuy" Hinojosa (D) of McAllen both filed ultimately unsuccessful legislation to require law enforcement to gain warrants to access cell-phone location data, except in emergencies or at the request of the phone owner. A similar provision by state Rep. Bryan Hughes passed the Texas House as an amendment on a 126-4 vote but was not included in the final bill.

Now, Sen. Estes chairs the Senate State Affairs Committee which has received an interim charge to recommend legislation on a topic he was already championing! That should give cell-phone privacy legislation a significant boost in the 84th session.

The story of the current interim charges on electronic privacy is an object lesson regarding the unpredictable vicissitudes of politics. Interim charges were first requested by the House Criminal Jurisprudence Committee, but were not assigned by Speaker Joe Straus. One hopes Straus is not blocking the effort to spite the House author, with whom he has feuded in the past on other matters. After all, the bill had 107 joint and co-authors including a majority of reps from both parties! Most of his members want this!

Anyway, those of us hoping for movement on this bill were a bit deflated. Then, Lt. Gov. David Dewhurst revived the issue, assigning an excellent set of interim charges on these and related topics to the Senate State Affairs Committee. Suddenly, it looked like the issues would receive a thorough vetting before the 84th Legislative session after all. At least, right up until State Affairs Committee Chair Robert Duncan left his post to become Chancellor of Texas Tech and the Lt. Governor lost his primary and became a lame duck, as did the committee's vice chair, Robert Deuell (a great if under-remarked loss to the body on many levels). With the committee leaderless, a State Affairs staffer told me as recently as last month that they likely wouldn't hold hearings and would somehow generate a committee report without them.

Texas Senate State Affairs Chairman Craig Estes

Then, the Lt. Governor recently named state Sen. Craig Estes as the new chair of the State Affairs committee, a development I missed while vacationing in Mexico. As one of two Senate authors of legislation to require warrants in most cases for police to access cell-phone location data (Chuy Hinojosa was the other one), one would expect him to confront those aspects of the committee's interim charges with more than just a passing interest. These interim charges just got a LOT more interesting.

The House was already primed to pass the Hughes/Estes/Hinojosa legislation and this development sets the bill up to have a much better chance in the Senate in 2015.

Of course, there's many a slip twixt the cup and the lip. If Dan Patrick comes in as Lt. Governor and replaces Estes as State Affairs chair, that could reverse what currently looks like home-field advantage for the bill in that particular committee, depending on the replacement. And who knows where Greg Abbott will come down on the topic? Time will tell. But the odds of a cell-phone privacy bill's passage next year improved tremendously with Craig Estes' ascension to chairman of State Affairs, no question about it.

Governor may boost forensic reviews with grants

At a panel on Friday concluding a continuing legal education seminar sponsored by the Texas Criminal Defense Lawyers Association, Gov. Rick Perry's new general counsel, Mary Ann Wiley, said that before the next legislative session the governor's office plans to issue grants to assist processing cases involving potentially large-scale forensic errors, like the Forensic Science Commission's ongoing hair and fiber analysis or the arson review undertaken by the state fire marshal.

That's welcome news; those reviews have been rather ad hoc and funding will not only deploy more resources but help supply structure and, God forbid, maybe even greater accountability. It would also better position the state to implement the sort of rapid response to forensic errors suggested in last year's "white paper" from the Forensic Science Commission and the Court of Criminal Appeals' Criminal Justice Integrity Unit.

For Perry, this move doubles down on his recent self-positioning as a moderate reformer on criminal justice headed into the 2016 presidential sweepstakes.

Wiley also predicted that episodes of forensic error will continue to arise and reiterated her recent suggestion that the Legislature create an office of forensic writ counsel similar to the Office of Capital Writs to provide counsel in cases like the hair and fiber review or the Jonathan Salvador fiasco. She said the idea has gotten as far as discussions with a potential legislative sponsor, so expect some action on this when the 84th Legislature meets next year.

Timid proposal on surcharges offers no solution for drivers stuck in Lege-created morass

Your correspondent spent this morning waiting around to testify to the Texas House Homeland Security and Public Safety Committee about the Driver Responsibility surcharge on behalf of the Texas Criminal Justice Coalition. The committee was assembled in part to discuss draft legislation (pdf) to enact modest reforms to the program, but I testified on behalf of TCJC that their suggestions are too timid.

TCJC had earlier this spring submitted written testimony to the committee recommending reforms and there were faint hints of some of those proposals in their draft, though in my estimation the recommendations were far too tepid. For example, they agreed to change from three consecutive years of surcharges to a single year with a payment plan, but the reductions in the draft document - none for DWIs, $100 for other offenses - aren't large enough to entice people whose surcharge debt may run into the thousands.

All of the suggestions in the draft legislation were forward looking, taking effect for cases after September 2015.; none of them addressed the backlog of drivers owing surcharges, including around 1.4 million who presently have no licenses because of surcharge nonpayment.

It was particularly disappointing that the draft did not direct the Department of Public Safety to implement another Amnesty program. They have the authority but have only ever done one and have said they don't plan to do another any time soon. But with hundreds of thousands of unpaid surcharges dating back a full decade, at this point, it will be impossible to clear out those old files without some sort of renewed or even beefed up Amnesty program, I told the committee.

The principle element of the bill would allow judges to dismiss charges for driving with no insurance or no license if they get the insurance or license within 20 days. Judges are probably already doing that, so it would codify an unwritten practice. A judge from Harris County (Hughes? I didn't get her name in my notes) testified that 20 days was too short for DWLI, because it took longer than that (perhaps up to 90 days) to schedule and take a DPS driving test if you don't have a driver's license.

Perhaps most significantly in the big picture, the draft would eliminate the three-year structure of the surcharge, reducing lower-level surcharges from $750 over three years to $650 assessed all at once. I told the committee that if drivers had the $650 they'd have bought insurance. Chairman Joe Pickett emphasized that amount could change and was just a placeholder; I acknowledged that and said our recommendation was that they'd need to lower the amount significantly to do much good. It's true, though that the staggered three-year civil payments on top of whatever crimnal fines were already paid has been a tremendous source of on-the ground confusion. If this bill passes, there will be just one un-just, unnecessary extra payment instead of three.

DWIs would also become a one-year surcharge under the committee draft but the amounts would stay the same: $3,000 total on the first offense, $4,500 on the second. DWIs already suffer from a 58% non-payment rate on surcharges, the committee was told. In past committee hearings, a rep from the Texas Association of Counties testified that DWI conviction rates had precipitously declined, mostly because judges and prosecutors were working with defense attorneys to find workarounds (like pleading to obstruction of a roadway) that don't incur surcharges. I suggested that if they thought drunk drivers should pay $3,000 they should put that in the criminal penalty and not have a separate, civil surcharge.

I meant to suggest, I see in my notes, that allowing deferred adjudication for DWI would give counties an option to prosecute DWIs without triggering the surcharge. But I forgot. Oops. Well, maybe their staff are readers.

Chairman Pickett emphasized repeatedly that he did not support getting rid of the Driver Responsibility surcharge, only modifying it slightly to address what he's dubbed are its most objectionable aspects. But how to judge which parts are the most objectionable? ¿Quien sabe? This baby is so reprehensible it deserves to be thrown out with the bathwater. Then set on fire. The swath of human misery this program has left in its wake is difficult to overstate. Very few judges or even prosecutors with first-hand experience have a kind word to say about the surcharge, one finds.

Speaking of which, Judge Edna Staudt, a Williamson County JP, made the excellent point that the thing the Lege liked about the program was the money but the thing causing all the problems is the policy of suspending driver's licenses for nonpayment. That's what's filling the jails and multiplying the number of offenders driving without insurance and/or with an invalid license. If you're looking for incremental reforms, why not eliminate all driver's license suspensions associated with nonpayment of surcharges? That'd mitigate much of the harm.

At this point, even the hospitals say they're fine with eliminating the Driver Responsibility program if the Lege will come up with some other source of funds for trauma hospitals, an idea with which nobody disagrees. All that's required is the political will to identify and implement a revenue source. TCJC suggested several in a 2013 report (pdf); a judge from Harris County suggested others today. And the truth is, the state will likely enjoy a surplus large enough next year that it could spend that sort of money volitionally - just because hospitals are a public good - without having to raise taxes. They could do it just by spending a portion of the budget surplus projected for the next biennium, if anybody really wanted to fix the problem.

Finally, just for my own reference, I should mention that while I was off for vacation the Texas Tribune published an item titled, "Driver program relies on lender fined by feds." Give it a read and see what you think: Something, or nothing? I'm a bit surprised none of those issues came up at today's hearing, which was narrowly focused on the proposed legislation.

MORE (8/5): See coverage from the Dallas News. A minor clarification: I am not "director" of the Texas Criminal Justice Coalition, I just work for them on this issue as a consultant. Also, reporter Christy Hoppe ID'd the judge mentioned above whose name I failed to record in my notes: Harris County Criminal Court Judge Jean Spradling Hughes. AND MORE: From Texas Public Radio.

See prior, related Grits posts:

• Judge: Driver Responsibility surcharge unfair, 'unconstitutional'
• Radio discussion of Texas' Driver Responsibility surcharge
• Lege ponders the effect of 'Driver Responsibility' surcharge on DWI convictions
• Could Texas Driver Responsibility Surcharge become an election issue? Examining reform suggestions 
• DPS announces 'incentive program' rollout on driver surcharges
• Be thankful: Incentive program all the fix we're getting for now on surcharges
• Lege committee looking to tweak Driver Responsibility program; incentive program about to gear up
• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'

Marshall Project: Prosecutor misled court about aid to Willingham snitch

The brand spanking new Marshall Project, a nonprofit journalism project focused on criminal justice, launched its first big feature this week: An examination by Maurice Possley of the remaining evidence against Todd Willingham outside of now-debunked arson testimony, honing in in particular on a confidential informant, Johnny Webb, who later recanted his testimony. Possley was one of the Chicago Tribune reporters who first credibly alleged that, by killing Willingham, Texas may have executed an innocent man.

The New York Times earlier this spring reported that Webb's cooperation agreement had never been disclosed to the defense. The Marshall Project's notable addition to the story: At trial, John Jackson told the court the informant received no benefit from his testimony. But in reality, he arranged substantial financial assistance through a third party and aggressively sought clemency for Webb even after he ascended to the bench and was no longer a prosecutor, Possley reported. The article does a nice job of linking to primary sources for most of its more controversial claims.

See more analysis of the new revelations from a national Innocence Project press release. The Dallas News editorial board opined in response that, "Outrageous allegations of unethical or illegal gamesmanship in the prosecution of Cameron Todd Willingham, who was executed in 2004, need a thorough and transparent examination by the State Bar of Texas."

Combine this Marshall Project article with David Grann's New Yorker piece on the case, the Texas Forensic Science Commission's mammoth report (large pdf) on junk arson science in this and the Ernest Willis case, Possley's original Chicago Tribune report (with Steve Mills), Judge Charlie Baird's never-issued opinion from the halted court of inquiry, and, if I may be so bold, Grits' Willingham coverage, which contains links and references to lots of contemporary material, and you'd have a pretty decent summary of all that's happened before and after Willingham's 2004 execution.

This deadly fire nearly a quarter century ago in Corsicana must be one of the exhaustively reported (probably non-) crime stories of the modern era. If it can be uncovered via methods of law, journalism, science, or government inquiry, it's likely been explored in the Willingham case. Ironically, so many resources have been thrown into this endeavor precisely because Todd Willingham is dead. If he'd been incarcerated on a life sentence like Ed Graf (who won a new trial, delayed until September while the DA looks for their lost files, and is now sitting in the McLennan County Jail), sadly I doubt the national press would blink an eye.

FBI accused of dragging feet on hair and fiber review; Texas plugging along

As the Forensic Science Commission this week in Fort Worth discussed Texas' nascent review of convictions involving possibly erroneous hair-and-fiber testimony, the FBI drew fire for dragging its heels on similar reviews at the national level, especially in death penalty cases, allowing three inmates including one in Texas to be executed without coming forward to say testimony in their cases was flawed. See the recent 146-page report (pdf) from a DoJ Inspector General at the center of the recent controversy.

New Scientist mentioned that New York and North Carolina have also launched state-level reviews and that, "of the 10 per cent of cases reviewed so far, the 'vast majority' contained errors. As a result, 136 defendants, including two on death row, will receive letters informing them of their right to DNA testing as a means of proving their innocence. This is in addition to 23 letters that went out last year, including to 14 people on death row." The magazine reminds us that:

hair analysis is just one of many forensic disciplines that hinge on using a microscope to visually compare two samples and declare a match. Ballistics, fibre analysis, tyre and shoeprint comparison and tool and bite-mark analysis all take a similar approach. All came under heavy criticism in a landmark report on the state of forensic science published in 2009.

"This review is likely to have an effect on any discipline where they didn't have a statistical reference to estimate the chances of another person being a match," [national Innocence Project cofounder Peter] Neufeld says. He believes it could even filter across to disciplines with a more robust statistical basis such as fingerprinting, but which have been exposed as flawed in recent years.

Staffing the zoo: Prosecutors bail on McLennan DA

Prosecutors and staff at the McLennan County District Attorney's Office are jumping ship, reported the Waco Tribune Herald, with three prosecutors leaving in the last week - including DA Abel Reyna's first assistant, Greg Davis - and eight employees total departing since the new year. Nobody's saying why they bailed but it's not hard to guess. (Budget cuts, rising workloads, unreasonable plea policies, maybe?) If you don't like sweeping shit, don't work at the zoo.

Readers with any direct or even second-hand knowledge of the situation, please regale us in the comments.

Wearable tech and the corrections market

GPS ankle monitor: Looks uncomfortable

Lately, your correspondent has been fiddling in my spare time with a hobbyist-level wearable technology project involving a couple of cheap sensors (which soon will be) wired into a pair of gloves to generate beats, tones, and lights. In the process, I've become more familiar with the state of wearable technology, even attending a Austin techie meetup on the topic a few weeks back.

It's not hard to imagine useful implications in different industries for wearable tech, but as a distinct consumer market, many observers view the field as a disappointment. The Guardian recently asked, "Wearable technology hasn't taken off the way it was expected to - why not?" A few serious, local startups are working on exercise or health-related wearable apps, but consumers haven't bitten beyond a few kids in light-up tennis shoes or cheap club gear. At this point, your refrigerator and thermostat are more likely to talk to your computer than your clothes.

What you don't see in any of the business tech press about wearables are analyses of wearable tech in the law enforcement and corrections industries, though that may be their biggest field of success so far. The use of GPS trackers on probationers and pretrial defendants out on bail has become so ubiquitous that larger departments suffer from data overload. In treatment courts, but also in some jurisdictions for regular DWI probationers, so-called SCRAM technology - an anklet with a sensor that measures alcohol in one's perspiration - are so popular that Texas courts can't afford nearly all of them that judges would like to use. (I'm waiting for the day probationers' anklet can talk to them; the tech already exists.)

Awkward police 'body cam'

Setting aside community supervision issues, police officers today are ever-more frequently decked out with body mics and cameras, a market that Taser International leads almost by default. Police today often make traffic stops in state of the art body armor, boasting an array of gadgetry around their belts that remind one of Batman. To the extent that routine tech can be incorporated seamlessly into something the officer is wearing anyway - especially tech that can transmit useful data back to a supervisor in real time - there's a significant law-enforcement market to be had.

For quite some time, cops and crooks arguably have been the biggest markets for "wearable tech," even if it's seldom discussed in that frame. That will remain true for the near future, with much room for expansion in that market in the near term. There's even a (perhaps overly optimistic) argument to be made that wearable corrections tech could "make it possible to replace the system of large-scale imprisonment," that manufacturers in that market contribute to progressive de-incarceration goals.

I'd love to see a company like Adafruit take on wearable tech for law enforcement - somebody that cares if the product is ugly, if it's elegant, well-designed, comfortable, if it works as advertised. If Adafruit started re-imagining police body cams and alcohol sensors for probationers, IMO they'd leave Taser and SCRAM in the dust. Those folks have forgotten more about wearable tech than the other two companies likely know.

The wearable market so far has pigeon-holed itself largely into areas - exercise and health - where people themselves use generated data, or fashion, where sensor data may trigger an accessory but not necessarily a paper trail. In corrections fields, though, it's police management, probation officers, or pretrial services divisions that make use of the data, not the wearer themselves. Those sorts of institutional customers with significant baseline demand constitute a captive market, if you'll pardon the pun. While it may seem distasteful to design technologies of control, it's better if highly skilled engineers sensitive to the wearers' experience create this tech. Either way, somebody's going to profit from it. Bet on that.

Zocalo, Mexico City, a great place for light-up garb at night

BTW, I do think there's an untapped market for a lot of the light-up or sound-generating wearable stuff for youth, but a lot of those items come relatively cheap from China and suffer from low margins. The more significant profit potential comes when you can find ongoing, real-world uses for wearable-generated data, which is why Grits foresees big profits for wearables in the corrections market.

AN ASIDE: Just for fun, we took some light-up garb with us to Mexico City to the zocalo after dark: The granddaughter's hoodie with EL Wire stitched around the edges, a few dozen small glow sticks, a couple of balloons with flashing RGB LEDs inside them, and three battery operated EL Wire strands long enough to use as a jump rope, one of which ended up lining a hat. Folks approached in gaggles wanting to buy one or the other of the light-up goodies, with somebody offering five times for a strand of EL Wire what I'd paid for it. We gave away glow-stick bracelets to the kids and referred would-be customers to the websites where I'd bought them. (This was a great way to meet families with kids, btw.) When it was bed time, the young'un gave away the balloons with flashing LEDs to a couple of little girls in the square and distributed the last of the glowsticks to a passel of teenagers before she turned, hoodie flashing, and we walked back through the seemingly ever-present multitude to our hotel. SEE MORE from a kid-centric vacation here.

Roundup: Expensive jails, paid-for pols, broken grand juries, and flawed forensics

Here are a few odds and ends that haven't made it into full, individual posts since my return from Mexico City but which still deserve Grits readers attention:

This week in Cow Town: Hair microscopy and other forensic conundrums
The Forensic Science Commission will hold meetings of its hair and fiber microscopy panel (2 p.m.) and the Complaint Screening Committee (4:30 p.m.) in Fort Worth this afternoon, with its main, full committee meeting tomorrow morning. Go here for the agendas and a livestream of each event.

Contract jail scheme failed to turn profit because of high jailer pay
El Paso county commissioners say they have the most expensive jail in the state because of high jailers salaries that start at $37K and rise to $60K after eleven years, which is certainly the highest I've heard of in Texas. The county takes in $10-11 million per year in revenue for federal prisoners they house but can't turn a profit (I know Grits readers are surprised) because of high overhead costs.

John Wiley Price: Federal defendant
So much to say ... so little of it fit for polite company. In Dallas, county commissioner John Wiley Price has been arrested on federal corruption charges and hauled away in irons. He has been "indicted on 11 bribery- and conspiracy-related charges that allege that he took things of value to influence his vote on business matters," reported Texas Lawyer. Price for years acted as a self-appointed czar of the Dallas County Jail as well as the county bail bond board, so there's a particular irony in his present situation. I don't know much about the specifics of the feds' case against Price beyond published newspaper reports, but it'd be hard for any allegation to surprise me. The feds and Price have been dancing around the issue for years, so I'd be surprised if the US Attorney failed to come loaded for bear. If this fiasco ends with Price rising from the political grave, vampire-like - or worse, Messiah-like, stronger than before - it will balkanize and poison Dallas politics for years. So if they've got him, I hope it's dead to rights.

'Is the grand jury system broken?'

At Texas Monthly, Dan Solomon followed up on Lisa Falkenberg's reporting about grand jury misconduct with a short essay titled, "Is the grand jury system broken?" Good question. IMO the answer is, "There's no way to tell." Last session, state Rep. Bryan Hughes filed an unsuccessful bill to require recording of witness testimony in addition to suspects. That'd be a start, and even better would be for those proceedings to be recorded and turned over to the defense prior to trial, just like Brady material. At a minimum, the information should become public after conviction, like other materials in police and prosecutors' possession that becomes public under Sec. 552.108 of the Government Code when a conviction is final.

Rising law enforcement costs in Montgomery County
The Sheriff's office accounted for the bulk of a recent budget increase in Montgomery County.

Make death-in-custody reports more easily available
I wish the Attorney General would link copies of death in custody reports to the names on their macro list published on their website. It's all public record and doing so would make them a lot easier to use without wasting everyone's time with pointless bureaucracy. According to the list, there have 1,736 deaths in custody at TDCJ between 2005 and so far in 2014.

Consensus on privacy of cell-phone location records?
I agree we are approaching a national consensus that cell-phone location records should be private, but unlike this author I'm not sure all the evidence so far blows that direction. If the Texas and California Legislatures pass warrant requirements, it would be hard for SCOTUS to deny there's a significant national trend. The array of less populous states whose legislatures have so far acted may not yet count as a consensus, particularly when federal circuit courts are split on the question and mine in particular (the 5th) is on the wrong side of history.

A big advocate for bail reform
Times have changed when New Jersey Gov. and presidential hopeful Chris Christie feels politically comfortable getting out in front of bail reform. He wants to give judges discretion to deny bail based on dangerousness and to have most release decisions governed by risk assessments instead of the ability to pay a bondsman.

'Do border surges work?' For incumbent pols, but not really the rest of us

The Austin Statesman on Sunday published an extended investigative piece on Texas' beefed up border security efforts and posed the simple but controversial question: "Do border surges work?" The article tracks several themes examined on Grits earlier this month about the lack of articulable goals or success metrics for an expensive, open-ended deployment which now includes not just Texas DPS but 1,000 National Guard troops, all of which so far is being paid for, un-budgeted, out of the state's general fund.

Government claims victory both when seizures go up and down, making the metric meaningless for evaluating whether taxpayer money is well spent funding "surge" efforts. The authors attempt to apply a normative analysis based on the facts and interests at stake and concluded there's little evidence Texas boondoggle border surges are helping the problems they're ostensibly aimed at resolving. All these troopers and soldiers arrive at the border with no obvious jurisdiction or meaningful role to play.

Still, the bottom line answer to "Do border surges work" is "Yes," though not for the reasons one might think. Certainly they're not thwarting illegal immigration, drug smuggling, nor maximizing the state's bang for the buck fighting crime. But those expectations misunderstand what's really going on with this latest round or border security spending.

Like its predecessors dating back to Operation Linebacker, recent surges by state and local law enforcement, much less by the National Guard, are nothing more nor less than expensive political theater. Border surges "work" not to reduce crime at the border but to allow Texas pols to claim they're "doing something" about the illegal immigration since Obama won't fix the problem. Never mind that their actions also won't fix the problem and may worsen it. Or that state leaders have prioritized a politicized "surge" over road maintenance. Or that a purely martial response ignores the real and immediate humanitarian crisis facing children from Central America who're piling up like kindling in Texas-based detention facilities. The meme plays well to portions of the GOP base and in the near term, to win an election, ginning  up the base matters a lot more than the truth. As long as that dynamic holds, we'll see more border surges because incumbent politicians have seen they "work,"  at least for purposes of political expediency, though not because they make us one iota safer.

What would it mean for border security to really "work"? Grits has argued in the past that any new border security funding should go first to pay for expanded Internal Affairs capacity (or maybe some sort of anti-corruption unit) to rein in bribery and collusion with drug runners among border law enforcement that contributes to the chronic, intransigent nature of the problem. Just paying overtime for more vehicle patrols, in the end, won't accomplish much.

Meanwhile, Politifact took on questions about a purported crime wave by "criminal aliens" touted by Attorney General Greg Abbott and Governor Rick Perry to support the border crackdown. I'm not a fan of Politifact. I think their only two ratings with any real meaning are "True" and "Pants on Fire." But lo and behold, they gave a "Pants on Fire" rating to Gen. Abbott for asserting that about 3,000 murders in Texas could be attributed to lax border security, calling the claim "incorrect and ridiculous." They also gave a "Pants on Fire " rating to Gov. Perry for similar overstatements a couple of weeks prior for claiming a phony Mexican murder wave. Of course, in the real world immigrants - legal and undocumented alike - commit crimes at very low rates compared to American citizens. But one wouldn't want to let facts interfere with one's opinions, so instead we must witness the disgraceful spectacle of the state's top politicians bearing false witness to pander to the nativist wing of the GOP base.

Another, accompanying article from AP posed the question: "Lawmakers: Is beefed up border security worth it?" with the additional National Guard troops announced while I was out of town (in Mexico City, ironically), Texas is now spending $4.3 million per week out of un-budgeted general revenue to support DPS' and the National Guards' expanded presence, perhaps indefinitely. That's nearly a quarter-billion dollars per year if it goes on that long. I know people have short memories, but those who can recall at least back to the George W. Bush governorship should understand why sending soldiers to the border is as likely to end tragically as to improve things. 

Increasingly I wonder if much of the extra hype we're seeing about the border from state leaders isn't intended as a pre-emptive counter to House Speaker Joe Straus' stated desire to stop spending state highway money on DPS and spend it on roads and transportation instead. By getting him to commit to this extra spending before session even begins and Straus can appoint a new budget chair (Adios, Jim Pitts!), the Speaker seems to have been outmaneuvered, ensuring money from the state highway fund will continue to be siphoned to DPS, perhaps even in increased amounts. Col. McCraw and his allies knew better than to let a crisis go to waste and seized on the humanitarian plight of Central American kids to justify proposing a much more militarized southern border.

That's my best guess as to the larger chess match being played here, with all the overheated border security rhetoric that's dominated the public debate a convenient smokescreen for DPS and its allies hoping to stave off budget cuts if their highway money goes kaput. Now it's the Speaker's move. He can acquiesce, or insist after some respectable interlude that DPS prioritize and cut other spending in its budget to cover the cost. That'd be a Hail Mary, though. He'd need a strong Republican Senate ally (or a governor with line-item veto power) to pull himself out of the corner he's been backed into.

Regardless, that to me seems like the Speaker's only option, besides giving up his quixotic push to spend highway funds on highways before it ever properly got off the ground.

Dallas man exonerated via testing rape kit backlog

While I was on vacation in Mexico last week, Texas saw its first exoneration in which the District Attorney proactively tested samples from rape kit backlogs and the exoneree had pled out, long ago served his time, and was not actively sought DNA testing. Reported Mark Berman at The Washington Post (July 25):

In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender

Now, nearly a quarter of a century after he was convicted, Phillips’s name is being cleared. And, in an unusual twist, he didn’t even realize it was happening.

Hundreds of people have been exonerated through DNA testing, with 317 such post-conviction exonerations since 1989, according to the Innocence Project. This week, the office of Craig Watkins, the Dallas County district attorney, announced that Phillips, 57, was going to join their ranks.

Phillips, though, was not aware that DNA testing was going to prove his innocence, nor was he seeking such tests or pushing for an exoneration. He is the first person exonerated by a prosecutor’s office without doing these things, according to Watkins’s office and the National Registry of Exonerations.

“This is different from other exonerations…in a very important way,” said Samuel R. Gross, editor of the National Registry of Exonerations and a law professor at the University of Michigan. “The man who was exonerated, this wasn’t on his mind. He wasn’t thinking about it, he hadn’t thought about it.”

Instead, the first he heard about it was when someone from the Conviction Integrity Unit contacted him, Gross said. That unit was established by Watkins’s office in 2007 to review and investigate claims of innocence and other old cases.

It seemed inevitable that testing rape kit backlogs would reveal some innocence cases as well as help identify assailants in under-investigated rape cases. Maybe now that Watkins has broken the ice, other DAs will feel more comfortable testing for possible exonerations as well as to identify new suspects in cold cases. Congrats and good luck to Mr. Phillips, for whom it must feel like Christmas in July.

A glimpse into grand jury misconduct

Lisa Falkenberg at the Houston Chronicle has posted a four-part series describing abusive interrogation by a grand jury so intense it may cause a capital murder conviction in a police officer's death to be overturned. Teaser: Anthony Graves plays a pivotal, on-the-ground role:

• A disturbing glimpse into the shrouded world of the Texas grand jury system
• Mother of three pressured into changing story, but jailed anyway
• Anthony Graves helps open a painful door to the past, and perhaps the truth
• Cop was foreman of grand jury in cop killing

The episode provides a rare glimpse into the grand jury system: "Appellate attorneys were so outraged by a 146-page transcript of [Ericka Jean] Dockery's testimony before the 208th Harris County grand jury on April 21, 2003, that they entered it into the public record for judges to review." In the transcript, wrote Falkenberg, "grand jurors don't just inquire. They interrogate. They intimidate. They appear to abandon their duty to serve as a check on overzealous government prosecution and instead join the team." For example:

"If we find out that you're not telling the truth, we're coming after you," one grand juror tells Dockery.

"You won't be able to get a job flipping burgers," says another.

Dockery tells the group that if she believed [Alfred Dewayne] Brown actually killed people, she'd turn him in herself: "If he did it, he deserves to get whatever is coming to him. Truly," she says.

Ms. Dockery changed her story "after being told again and again to think about her children." The grand jury foreman told her he didn't believe her original story and, if she persisted in committing perjury, "you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time." Eventually she caved, told them what they wanted to hear about her boyfriend, then she was prosecuted for perjury for diverging from her original story. Her testimony was central to his conviction which sent him to death row. Ugly stuff. The trial judge recommended Alfred Brown receive a new trial but the Court of Criminal Appeals has sat on the case for more than a year without a ruling, Falkenberg reported.

Read the whole thing; it's very good and brief excerpts don't do it justice.

MORE: From Dan Solomon at Texas Monthly.

All Ten: DPS now fingerprinting every driver at renewal

Reversing a decade long policy implemented after the Texas House shot down the idea in 2003, the Texas Department of Public Safety earlier this year began taking all ten fingerprints of drivers when they apply for a license or a renewal. Previously they required only a thumbprint or an index finger if for some reason a thumbprint couldn't be taken.

But the Dallas News' Dave Lieber reported (June 7) that DPS license facilities now require drivers to give them all ten fingerprints, a policy change that took effect earlier this year with no publicity from the agency.

Long-time readers may recall that DPS sought similar authority back in 2003 and was smacked down by the Texas House. In 2004, Grits wrote a post titled "Why would they want all ten fingerprints?," and the question remains. Surely no more than a thumbprint would be required to prevent license fraud?

No, the real issue is they want to run fingerprints against state and national criminal databases. At first, DPS spokesman Tom Vinger told Lieber “As a point of clarification, fingerprint information collected at driver’s license offices is not run against the national fingerprint database. This is not authorized by the federal government or state statute.” But soon he changed his tune. A month later, Lieber quoted "DPS spokesman Vinger say[ing] the system has already led to the capture of three individuals wanted for crimes."

At The Watchdog.org, Jon Cassidy assessed this development in a way that jibed with my own recollection of where this issue had been left: All ten fingerprints is overreach. Did they think no one would notice? This idea was shot down in the Texas House 111-26 back in 2003 and I doubt it'd fare any better now. The Lege should take the opportunity next spring to reverse this decision, if DPS doesn't, and order the agency to expunge all but a thumb or index fingerprints for each driver.

That took a lot of chutzpah.

Immigrants (still) arrested at very low rates

A reporter pointed me to this page on the Texas DPS website titled "Texas Criminal Alien Arrest Data" posting material that Col. Steve McCraw has been using to promote the state's beefed up border strategy. Check it out.

The data, though, lack context. Notice that the first chart is not to scale - arrests of "criminal aliens" are in fact a small proportion of the whole: Eight percent of statewide arrests is much lower than the 16 percent of Texas residents who are foreign born. The rest were "Non Alien Arrestees," in DPS' parlance, which I guess is how we now label "citizens." (In this context, "alien" includes both legal and undocumented immigrants.)

In any event, foreign-born residents account for sixteen percent of Texas' population but just eight percent of total statewide arrests, by DPS' data. That's not exactly a raging crime wave.

TM interviews SA4 lawyers

Michael Hall at Texas Monthly has posted an interview with Mike Ware and Keith Hampton who were named criminal defense lawyers of the year by the Texas Criminal Defense Lawyers Association for their role championing habeas corpus relief for the San Antonio Four. Check it out. And congratulations to both of them.

Crime and violence data from Texas prisons

New data out on Texas prison crime and violence from the TDCJ office of inspector general: Mike Ward at the Houston Chronicle reported last month ("Prison crime not dropping with the population," June 20) that, "New statistics obtained by the Chronicle show that 3,001 criminal charges have been referred against imprisoned felons since 2009. Another 584 charges have been referred against correctional officers. Those numbers generally appear to be holding steady so far this year, even as the number of inmates housed in Texas prisons has dropped during the same period."

Also, "93 correctional officers faced criminal charges last year for crimes inside prisons, ranging from bribery to theft to sexual assault to official oppression. That is down from a high of 154 in 2009, according to the statistics made available under the Texas Public Information Act." Also, Ward suggested:

If the rate of prison crimes is staying roughly the same, other statistics underscore that cell block conditions are not improving much – and may be getting tougher. In April, officers reported using chemical agents on unruly felons 403 times, compared with an average of 262 times a month last year. Some 104 offender assaults were reported in March, compared with an average of 85 a month last year.

Despite the currently lower population of Texas convicts – just under 151,000 were housed in the 109 state prisons this week, about 9,000 fewer than roughly a decade ago – [TDCJ inspector general Bruce] Toney and other prison officials said they do not expect the number of prison crimes to decline much.

In addition to the stats, Ward supplied this remarkable anecdote as evidence of increased violence in Texas prisons, in this case instigated by staff:

Officials and guards acknowledge that the new numbers underscore that the Lone Star State's maximum-security lockups are living up to their long-standing tough reputation.

A March 17 beating at the Gib Lewis Unit near Woodville, in deep East Texas, highlights that.

There, shortly after 11 p.m., seven men stormed into a prison cell and began punching the inmate inside, a convicted Tarrant County burglar serving a two-year sentence. "Beat his a--," the attackers shouted over and over, as they held the inmate by throat, according to an internal report of the incident obtained by the Chronicle.

This, however, was no usual prison beat-down: The attackers were uniformed prison guards, led by a veteran lieutenant and a sergeant.

Investigators said both supervisors have been fired, and all seven guards now face charges of official oppression. The reason for the attack was that the convict, who had a history of harassing jailers, earlier had threatened a female guard.

As for the convict, he was paroled last week after serving about nine months, they said.

Good report (read the whole thing), but I'd be cautious in interpreting any one year increase or decrease too strictly; these are relatively small numbers and changes could result from a variety of factors. E.g., TDCJ has cracked down on contraband cases but that doesn't mean more contraband is coming in than before, only that the agency is now making a greater effort to enforce the rules.

And as an aside, God bless Mike Ward. If anything ever happens to him, there won't be one reporter left in the state consistently covering agency-level issues at the Texas Department of Criminal Justice.

'Pandering to lurid curiosity': Professional journalism and crime coverage

From the new, proposed ethics code for the Society of Professional Journalists: "Avoid pandering to lurid curiosity or following the lead of those who do."

Without "pandering to lurid curiosity," would there even be a crime section?

Give the code a read. Use the comments to name Texas journalists you think live up to its provisions, or don't.

Paul Kennedy on Michael Morton Act waivers

Houston criminal defense lawyer Paul Kennedy provided ground-level perspective on the Michael Morton Act waivers defense counsel are being asked to sign as part of plea bargains:

The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.

Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.

I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.

Kennedy also makes a strong point about how those waivers might play out when future revelations call into question old convictions that could be challenged under post-conviction habeas corpus writs, concluding:

Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?

Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?

If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.

We've already heard claims from prosecutors that the Michael Morton Act's requirements are too onerous. When Lege committees begin to evaluate the new law in interim hearings, they should also hone in on the propriety and utility of these waivers, which is a developing issue for the criminal defense bar. But in both cases, as Grits argued when prosecutors' complaints surfaced last month, I still tend to think, "The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking." Big ships turn slowly and the Michael Morton Act was a major change in how Texas prosecutors do their business.

That's why, all told, my preference would still be for the Lege to leave the law alone in 2015. It's hard to tell right now which issues will ripen and develop and which ones may lose steam. Prosecutors' complaints of extra burden may dissipate once systems are in place. And waivers will inevitably be litigated up the judicial food chain, given time, and limits potentially placed on their broadness in that venue. Maybe we'll look up in a couple of years and it will all have worked itself out. Or, if not, the Lege can have more time and track record to judge when deciding how to tweak this groundbreaking law.