Shannon Edmonds on why Court of Criminal Appeals outcome in DeLay case '180 degrees' from Abbott's Supreme Court interpretation

The Texas Public Policy Foundation's Marc Levin has been promoting the idea of codifying the rule of lenity, so I was interested to hear prosecutor association rep Shannon Edmonds' take on the topic, testifying Tuesday before the House Criminal Jurisprudence Committee:

We have it in Texas already. We have it in Texas for cases that are outside the Penal Code, basically. It was just applied in the Tom DeLay case, okay, in which the Court of Criminal Appeals used it to interpret a statute 180 degrees differently than the Texas Supreme Court interpreted the same statute in the Elections Code. And the Court of Criminal Appeals applied it because it was a crime outside the Penal Code.  And the result is, they said the tie went to the defendant in that case rather than in the Texas Supreme Court case, then-Justice Abbott had found that someone could sue under the same Elections Code provision, and it all had to do with mens rea.

Shannon said the rule of lenity is an "obscure legal issue" that "egghead appellate lawyers" argue about in court after the fact and that existing statutory construction case law covers what Levin wants done. He cautioned specifically against applying the rule of lenity to penal code offenses. Elizabeth Henneke from the Texas Criminal Justice Coalition followed Edmonds and offered effective, lawyerly counterpoints to his position, for those interested in the specifics. See her written testimony.

Grits emailed DeLay's attorney, Brian Wice, to ask his opinion of Shannon's comments. He responded:

His comments about the rule of lenity being "an obscure legal issue" marginalize a tenet of the criminal law that is a fail-safe mechanism in cases such as DeLay where prosecutors were permitted to manufacture an illegal act out of a series of perfectly legal ones and to not merely prosecute Mr. DeLay but to turn his life upside town for almost a decade before the CCA put an end to their legally bankrupt persecutorial ploy.

And his half-hearted snarky remark about "eggheaded appellate lawyers" was, simply put, bush league. He can say what he wants. At the end of the day, the vote in DeLay was an 8-1 smack-down against the good folks he shills for. He can have the soapbox.  We got scoreboard.

You can listen to the hearing here. The discussion of the rule of lenity is the first item, with Edmonds comments on the topic coming at the 49 minute mark and Henneke following after him.

Roundup: Of atonement, prison bankers, pot and imaginary terrorists

Lots going on and I won't have time to write about all of it. Here are several items clogging my web browser that merit Grits readers attention, even if they may not make it into independent posts:

Dallas PD will move to citations for pot possession
After revamping its systems, Dallas PD will attempt for the second time to exercise authority granted them by the Legislature in 2007 to issue citations instead of arrest people for marijuana possession and a handful of other Class B misdemeanors, reported the Dallas News. The main reason is to keep police officers on the street, saving: "each officer the two to four hours squandered in driving a nonviolent misdemeanor suspect to the county jail and going through the booking rigamarole." At a House County Affairs Committee hearing in May, legislators discussed simply reducing penalties for pot possession and driving with an invalid license (DWLI) because so few departments were using this authority and local jails were still too full of petty pot offenders. MORE: From Unfair Park.

Austin to eliminate rape kit backlog
Thanks to extra staff and funding, Austin PD plans to eliminate its rape-kit backlog - which is much smaller than was Houston's - within 12 months, the chief announced.

Dallas DA's race goes negative, gets personal
The Dallas DA's race is getting ugly and personal. This is the kind of election that both makes me miss performing opposition research in campaigns and simultaneously glad to stay miles away from the process. Watkins should, and may still, win this election going away. The only things keeping it close are inexplicable, self-generated gaffes. His opponent Susan Hawk may have strayed over the line implying he was drunk at a debate. There are various means for launching an attack and that wasn't the smartest way to stage that one. But Watkins doesn't look much better. He seems bent on providing fodder for critics instead of creating an alternative narrative voters can latch onto. Such races make me miss oppo research because this is the sort of race where well-crafted negative messages could make a big difference. (Neither side seems to have that sort of professional help, judging from the predominant messages in the campaign.) It makes me glad to stay away because the whole thing is becoming highly personal and will result in grudges held by the principals for many years to come. I don't need that kind of pointless, narcissistic drama in my life.

Bexar considers expanding public defender office
In San Antonio, Bexar County officials are mulling a full-blown public defender office, expanding on the appellate and mental health public defenders operating there now. This article by Michelle Cassady discussed obstacles to creating a public defender steps the county is taking to overcome them. The reason for the move: economics. "Defendants in 64 percent of all criminal cases filed in the county last year declared themselves indigent — too poor to afford representation — and were appointed an attorney, according to county records."

Do criminal laws rob offenders of atonement?
Hanna Liebman Dershowitz, a former staffer for state Sen. Rodney Ellis and now an attorney with the Jewish Council for public affairs, had an article in the Jewish Daily Forward (Oct. 6) which opened, "We are emerging from the Day of Repentance — a time for contrition for misdeeds, focusing on self-improvement and making a fresh start. But what about people who don’t have the luxury of wiping their slates clean, even for minor transgressions? Are our laws and policies robbing millions of citizens of their own opportunities to turn toward good, to achieve the possibility of teshuvah, atonement, that we claim for ourselves each year?"

ISIS still not infiltrating the Texas border
Politicians are going to keep repeating this garbage so it's worth highlighting the factual counter whenever it's offered: The "claim that Islamic State fighters were apprehended in Texas" was “categorically false” according to the Department of Homeland Security and “not supported by any credible intelligence.” The allegations "gained widespread attention on Wednesday, especially on conservative news websites." And remarkably, "The National Republican Congressional Committee, for example, is running an ad in Arizona that claims terrorists are entering the country through the state’s southern border." Rick Perry put similar, garbage allegations on TV in 2006. It was a lie then, just like now, but that didn't make the political message any less successful. The reason politicians just make stuff up and stick to their guns in the face of all evidence is that, as often as not, it works.

'Meet the prison bankers who profit from the inmates'
The subhed is the title of a recent Time magazine article focused on the little analyzed topic of moving inmates' money.

Police and private surveillance
Every time one turns around there are new stories out that make you question the vast scope of mass public surveillance, including these developments regarding private surveillance of public spaces.

Manuel Velez leaves death row: Case tainted by flawed forensics, ineffective counsel

Another questionably convicted capital defendant has walked off of death row a free man. Manuel Velez, whose capital murder conviction was overturned based on ineffective assistance of counsel and the state's use of a future dangerousness expert whose testimony was debunked, pleaded guilty to a lesser charge and was released based on time served. Reported the Houston Chronicle:

Manuel Velez, a 48-year-old construction worker from the Rio Grande Valley who had been on death row for the capital murder of his girlfriend's 11-month-old baby, was released Wednesday on parole.

"I'm very happy. I thank God for my lawyers, for my freedom, for getting me out of death row," Velez said as he left prison in Huntsville on his way to Brownsville to be with his family.

Velez was allowed to be paroled after pleading no contest to a lesser charge of injury to a child.

Summed up Huffington Post writer Saki Knato, "To Velez's supporters, his release on Wednesday is the culmination of a legal drama that exposed many of the broader problems plaguing the justice system in Texas and beyond. The case 'contained a litany of injustices, including police misconduct, prosecutorial deception, ineffectiveness of defense counsel, and untruthful witnesses,' said Richard Dieter, head of the Death Penalty Information Center, in a statement." The Cameron County DA, by contrast, insists Velez is guilty. Either way, today he's a free man and to judge from the forensic evidence - which showed the injuries at issue occurred while he was out of town - IMO quite possibly an innocent one.

Pam Colloff's Texas Monthly story on the case may be the best overview for those unfamiliar with his story, doing an especially good job vetting the flawed forensic testimony. See also the trial judge's recommendation that Velez receive a new trial based on having received ineffective assistance of counsel. And here's a statement from Velez's attorney from the national ACLU.

MORE: From the Texas Observer. AND MORE: From Breitbart Texas which prematurely (from a legal perspective) declared Velez "innocent" TDCAA tweeted in retort, "Release on parole, yes. Innocent, no."

Levin: Create new barriers in House rules to new crimes, penalty enhancements

Grits liked Marc Levin's suggestions to the House Criminal Jurisprudence Committee yesterday to reduce the proliferation of new laws and criminal penalty enhancements every session. 1) To create criminal penalties outside the penal code should require both the Criminal Jurisprudence Committee and whatever committee normally handles the code to approve the bill. Anything that slows down the process for new criminal penalties would be helpful, he said. For example: 2) Disallow new crimes and enhancements from being passed on the House Local and Consent Calendar. He also suggested, 3) "strengthening the fiscal notes" for bills with new or enhanced criminal penalties to better reflect the true costs, particularly to local government and 4) requiring captions to state if the bill includes new crimes or penalty enhancements.

Levin noted that we have a process for "Sunsetting" agencies but not outdated criminal laws. He pointed to the example of Minnesota's governor calling an "Un-Session" to repeal outdated, duplicative and unnecessary laws and suggested the Legislature should create some sort of interim commission similar to that suggested in unsuccessful legislation by state Rep. Steve Toth last session. See the new TPPF by Vikrant Reddy on the topic, "More Law, Less Justice: The Proliferation of Non-Traditional Crimes in the Texas Legal Code" (pdf).

Shannon Edmonds from the Texas prosecutors' association told the committee there were now more criminal offenses in the Texas occupations code than the penal code.

Former Statesman reporter now director of TX House Criminal Jurisprudence Committee

At the beginning of yesterday's House Criminal Jurisprudence Committee meeting, Chairman Abel Herrero, a Corpus Christi Democrat, announced the appointment of former Austin Statesman reporter Miguel Liscano as committee "director" (which is presumably different from "clerk"). Liscano went from UT-Austin's Daily Texan to brief stints at the Fort Worth Star-Telegram's Austin bureau and the Waco Tribune Herald before landing at the Statesman, where he spent seven years. During the 2012 cycle he worked as an opposition researcher for political campaigns before joining Herrero's staff.

Liscano recently completed a masters degree from UT-Austin's LBJ School of Public Affairs where he worked with a team which "analyzed the possible effects of raising the age of juvenile jurisdiction in Texas from 17 to 18. We examined similar laws in other states, paying close attention to the process and methods advocates used to make the change happen. My colleagues and I also interviewed stakeholders in Texas to figure out how such a change might affect our state," according to his LinkedIn page.

Congrats, Miguel, and good luck with your new gig.

Border security gave DPS pretext for statewide intel gathering capacity

By the Legislative Budget Board's estimate, Texas spent $452 million on stand-alone border security expenses from fiscal years 2008 through 2013. See a nifty two-pager (pdf) published last year summarizing budgets and revenue streams, which includes this description of new statewide intelligence capacity being developed under the pretext of "border security":

The current state border initiative, Operation Border Star, was first funded with $110.3 million in General Revenue Fund-related and State Highway Funds by the Eightieth Legislature, Regular Session, 2007. Operation Border Star centers on the use of intelligence to increase the effectiveness of federal, state, local, and private law enforcement assets. Regional intelligence is collected by six Joint Operations Intelligence Centers (JOICs) in the border area. These JOICs send intelligence data to the Border Security Operations Center (BSOC) in Austin. Administered by Texas Rangers, the BSOC integrates regional intelligence to help determine a more efficient use of law enforcement assets in the larger border area. A major tool used by the BSOC is TxMAP. TxMAP merges intelligence from JOICs and other sources to provide a real-time display of criminal activity layered on a Texas map.

So, exactly what are "private law enforcement assets"? Rent-a-cops? Bounty hunters? Informants? Companies selling license-plate-reader data? Maybe Stratfor? (IMO more of a media outlet.) What does "private law enforcement assets" mean? Readers' thoughts?

Also one notices the intelligence folks are looking at a Texas map, which as we know, doesn't stop at the Willacy County line. Though this capacity has been developed on the pretext of "border security," the same methods and software are capable of being aimed anywhere in the state at anybody. And since crime on the border is much lower than in the state's big cities, it won't be long before the original justification will be viewed as a flash in the pan. Texas is a regional transportation and money laundering hub for illegal narcotics, so it will be easy enough for law enforcement to justify using their new toys tools elsewhere in the state, assuming they're ever even asked to explain it at all.

For the record, $452 million is enough to fund the state's prison system for a year. That's a lot of money with very little to show for it in terms of demonstrable improvements to security. The state has been shoveling border-security money down a bottomless pit, and under the watchful eye of supposed GOP budget hawks, to boot.

Every time I see poll numbers showing that border security and immigration rank highest among voter concerns, I think to myself, "these are rich people problems." Anyone actually judging the budget based on cost-benefit analysis can't possibly justify state border security spending at these levels.

19 sex-assault indictments so far from testing Houston rape-kit backlog

The Houston Chronicle's Mike Morris brought us an update (Oct. 6) on the vetting of the Houston PD's rape kit testing backlog. The story opened:

Houston's effort to test a nearly three-decade backlog of sexual assault kits has resulted in new charges filed against 19 people, city officials said Monday, including 10 suspects identified and arrested for the first time.

One of the new suspects has been charged in connection with two assaults; another remains at large, Houston Police Department spokesman John Cannon said. The other eight suspects, he said, already are in jail on other charges and now face sexual assault charges.

City Council in 2013 paid $4.4 million to two private labs to test DNA samples from 9,750 cases, including a backlog of 6,600 rape kits dating to 1987. The labs' work is nearly done, and staff from HPD and the city's forensics lab now are entering all eligible genetic information into the Combined DNA Index System, or CODIS, a national law enforcement database.

So far, DNA from 1,031 of those cases has produced "hits," meaning a suspect's DNA already was in the database in connection with an earlier crime. In the vast majority of cases reviewed to date, officials said the suspects are known to police, having been arrested, convicted or detained at some point.

HPD Assistant Chief Matt Slinkard said the reviews have confirmed police arrested the right person in 58 sexual assault cases, but officials did not release details Monday about these cases or the 19 suspects hit with new charges. The Houston Chronicle reported in April the testing had identified at least one serial rapist already in jail on other charges.

Some have criticized this process, often anonymously, as wasteful given the bang for the buck. For those critics: Explain in the comments how many sexual assault cases would be enough to justify the expense?

Will new bureaucracy stop abhorrent Harris jail conditions?

Harris County Sheriff Adrian Garcia says he's fired 249 people since taking office five years ago and expects the number to rise following an investigation of a mentally ill inmate left alone and untended. The Houston Chronicle reported that the incident spurred Garcia to create a new "jail compliance bureau" to monitor conditions.

I'd be curious to learn how many of those firings survived the civil service arbitration process? The Harris County Sheriff is the only county sheriff's office in the state covered by Ch. 143 of the state civil service code, so the Sheriff saying "you're fired" like Donald Trump isn't the final word.

Creating a new "bureau" on jail conditions might work to the extent the problem was mere negligence. If, as Grits thinks likely, this was a case where retaliation was sanctioned by supervisors against an inmate who hit a guard, those folks will find a way to get around any monitoring. E.g., having lieutenants instead of sergeants do "quality of life checks" may be a fine suggestion, but three lieutenants, a captain, a major and two chief deputies all knew what was happening to Terry Goodwin and it didn't make a difference.

Systems are important but the same human beings as before will operate them, excepting only the ones whose names Garcia successfully tacks on to the list of 249.

Coverup in Amarillo? Cops' burglary/search oddly unprosecuted

What a bizarre story! A former Amarillo PD officer was indicted last week on evidence tampering charges. Here's the nut: Officer Saulo Bravo and his partner, who has not been publicly named, without telling their supervisor, much less securing a warrant, drove an unmarked car to a presumed suspect's home at 2:30 in the morning on Aug. 24 and, out of uniform, broke in like a couple of two-bit second-story men and began searching. The homeowner awoke and heard them but they only announced themselves as police officers when he began shooting at them with a pistol.

Later that day, Bravo "allegedly concealed an affidavit that was to be used as evidence in a pending investigation" and also "allegedly destroyed a supplement to a police report and changed the report," reported the Globe-News. So the indictment is over covering up records related to the burglary, not the burglary itself.

Inexplicably, reported the paper, "Police have not said whether Bravo’s partner was disciplined over the incident." However, since under the civil service code there'd be a public record if he'd received discipline that involved a suspension, we know that means any discipline did not rise to the level of losing pay over it. Certainly the partner isn't being prosecuted for the B&E; nor is Bravo, for that matter. As is so often the case in public life, it's not the bad act but the coverup that triggers a response.

Read the Globe-News account. Let me know in the comments whether you think of this as a Fourth Amendment violation, primarily a records-tampering issue, or is this mainly a burglary/crime?

If Amarillo PD won't even name both officers involved and nobody is being prosecuted for the actual break-in, this becomes a matter the department can't be trusted to handle internally.  Maybe it's time for the Texas Rangers or the Justice Department to step in to determine whether Bravo and his partner should be prosecuted for more than just the paper-work faux pas listed in the indictment. It's not just that Bravo tampered with evidence to cover up what he'd done, it's what he'd done! And got caught! If anyone but cops broke into your home and got caught red-handed, they'd catch a burglary charge. Bravo's partner didn't even get a one-day suspension.

As an aside, this has implications for the Michael Morton Act. Let's say Bravo's partner is still working as a police officer generating evidence for prosecutors to use in criminal cases. Will prosecutors reveal his role in the burglary to defense counsel as impeachment evidence? If he's anonymous so far, that implies they don't intend to make that information public. Such diffidence toward misconduct could be more easily swept under the rug before the Michael Morton Act, which raises questions about secret personnel files in civil service cities that haven't been widely considered.

Grits' prediction: They plead Bravo's case down to a Class A misdemeanor charge, he gets probation and loses his badge. Also, the bit about the partner not receiving public discipline stinks to high heaven. If this case doesn't draw down outside oversight, the takeaway can only be that effectively there isn't any. The DA should seek recusal and ask for a special prosecutor and get these cases out of the hands of local politicos.

'Economist': Judges must seize back power from prosecutors

The Economist last week (Oct. 4) published a pair of pieces lamenting the super-sizing of prosecutorial power and calling for the state to hand back some of its authority to the judiciary.

• The kings of the courtroom: How prosecutors came to dominate the criminal justice system
• A plea for change: American prosecutors have too much power. Hand some of it to judges

The arguments are framed in terms of the federal government but would apply equally well to state-level courtrooms. E.g., "Several legal changes have empowered [prosecutors]. The first is the explosion of plea bargaining," which occurs at a slightly higher rate in Texas, even, than the federal number cited by The Economist.

"Another change that empowers prosecutors is the proliferation of incomprehensible new laws." Check.

Further, "The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with 'co-operating witnesses,' once rare, have grown common." Check. (The article opened with the story of prosecutors allegedly withholding evidence of a snitch deal in Todd Willingham's capital case.)

The main story concludes:

Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”

'Prostitute testifies she traded sex for protection from ex-Dallas cop'

The Dallas Morning News yesterday reported ("Prostitute testifies she traded sex for protection from ex-Dallas cop," Oct. 6) on an episode in which a police officer allegedly traded advice and protection for sexual favors. The article opened:

A prostitute testified Monday that she gave a former Dallas vice detective sexual favors in exchange for advice about how to avoid arrest and tips about his unit’s raids and investigations.

The woman, who asked that her identity not be revealed, testified on the opening day of the federal trial of Jose Luis Bedoy. He was arrested last year and charged with three counts of obstruction of an official proceeding and one count of obstruction of due administration of justice. He later resigned from the Dallas Police Department as a senior corporal.

Evidence that the U.S. attorney’s office is presenting during the trial also includes numerous text messages and recorded phone calls between Bedoy and the prostitute he allegedly had sex with in exchange for police protection.

The government’s case, however, may be hurt by disclosures last week that the FBI’s two key witnesses — including Monday’s witness — have continued to work as prostitutes while acting as FBI informants. Bedoy’s attorneys sought a delay in the trial to be able to research prosecutors’ “eleventh hour” revelations. But U.S. District Judge Barbara Lynn denied the request.

Bedoy, 40, met the woman in early 2009 during a raid on an adult entertainment business, court records show. He helped her when she tried to recover property that was seized in the raid.

Bedoy later contacted her to say he would like to get a massage from her, federal authorities said. That gradually led to more regular contact between the two over several years in which Bedoy alerted her to police investigations and then sought “massages” from her in return, prosecutors said.

On Monday, the woman described the relationship. She said Bedoy once helped her identify a client as an undercover police officer. He also told her when his vice unit was on duty so she could work certain days and hours without risk of being arrested, she said.

Once Bedoy went to her apartment to tell her how to detect an undercover officer, she said.

“If he was an undercover, he wouldn’t let me touch his private parts,” she said.

It's hard to guesstimate how often such line-crossing occurs when it comes to policing the oldest profession. Long-time readers may recall a study out of Chicago finding that three percent of tricks turned by prostitutes without a pimp in their dataset were for police officers in exchange for protection. And we've seen allegations that the feds intervened to protect an informant running a prostitution ring in San Antonio.

Either way, that doesn't change the big picture Catch-22: Criminalization of prostitution makes offenders out of victims in ways that further the aims of sex traffickers, making women less likely to cooperate with police or prosecutors. It's one thing for the Lege to talk about diversion programs, another thing to fund them. Make the path out easier and perhaps more women will follow it.

In the meantime, requiring police to wear body cams would reduce the overall number of opportunities for such misdeeds. These are coercive methods exercised exclusively in the shadows; they're arguably best prevented by exposure to disinfecting sunlight, which is an added benefit of this case making it all the way to trial.

Disputed confession corroborated by jailhouse snitches seeking secret deals may have resulted in two false convictions

Grits apparently forgot to post anything about this story when it came out last month, so let's correct the oversight.

Two Dallas men, Dennis Allen and Stanley Mozee, who were convicted based on Mozee's disputed, un-recorded confession and the testimony of now-discredited jailhouse informants, appear poised to have their convictions overturned, the Dallas Morning News reported last month (Sept. 11). My employers at the Innocence Project of Texas along with the national Innocence Project are representing Allen and Mozee. The paper's editorial board opined the next day that, "As the underpinnings of the convictions come out, criminal justice advocates in Austin will inherit more ammunition for one overdue reform: mandatory recording of suspect interrogation." The editorial board elaborated:

Key to the prosecutions is what transpired between Mozee and a detective in the interrogation room. The detective said the suspect was well-rested and lucid for the last session. Mozee said he was strung out on drugs and alcohol and was off his psychiatric medication. Moreover, he said the detective threatened him with these words: “Somebody’s going to get the needle, and it’s going to be you if you don’t come up with something.” That last interrogation ended with Mozee signing a statement depicted by prosecutors as a confession but later disputed by the suspect himself. Further, it was at odds with other evidence in the case, the Innocence Project brief says.

The phenomenon of false or coerced confessions has been established in recent years as contributing to an alarming percentage of convictions later overturned by DNA tests. It would be foolish for state lawmakers to ignore the chance to build in a common-sense safeguard and require police to start a recording when they formally question a suspect. Jurors would be thankful for eliminating the guesswork.

The Allen-Mozee cases also illustrate the wisdom of reforms enacted by lawmakers just last year. The Michael Morton Act, which took effect Jan. 1, requires prosecutors to share key case information with the defense. Innocence Project lawyers cited numerous documents favorable to Mozee and Allen that weren’t divulged before trial — such as correspondence with jailhouse informants who expected favors in return for testimony against the murder defendants.

If prosecutors stitch together a case with witnesses such as this, the reality ought to be clear to the court. The Constitution demands it, now with backup from Texas law.

According to the Morning News report, the habeas writs hinge not just on DNA testing techniques that didn't exist at the time of trial but also newly discovered evidence that prosecutors allegedly concealed informant deals from both the defense and jurors.

Though [Dallas attorney and Innocence Project of Texas board chair Gary] Udashen said the DNA evidence is compelling, he said attorneys were startled by additional evidence they found in the prosecutor’s original case file. Under an “open file” policy adopted by District Attorney Craig Watkins in 2008, attorneys filing a writ can view the file while preparing their case.

In that file, attorneys found letters from the inmates who had testified that they’d heard the two men admitting to the murder.

During their court testimony, the informants said neither had been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the State in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while insisting to jurors “that no such discussions with these informants had ever occurred.”

The two inmates have now told the defense attorneys their testimony was false, the filing says.

[Retired prosecutor Rick] Jackson said he “never, ever made any type of deals up front. I told every single lawyer I ever dealt with that was the case and that was no different in that case.

“There were no deals in place, period, end of story.”

Udashen said he has a “high degree of confidence that the convictions are going to be set aside.”

“Whether or not it ultimately results in an actual innocence finding,” he said, “I think a lot of that is going to depend upon what the DA’s office determines in their own independent investigation.”

The Morning News is exactly right about the significance of this case vis a vis legislation to require police to record interrogations. Who doesn't think justice would have been better served - then and now, whether these two men are innocent or not - if Mozee's original interrogation and confession had been recorded and everyone could see for themselves what happened there?

As recording tech and  storage gets cheaper and easier to manage, there are increasingly scarce few viable arguments against recording interrogations except that police are afraid the public may disapprove of their techniques.

Habern: On plea bargains, parole, and the consequences of untested evidence

Long-time Texas parole attorney Bill Habern, whose comments on the Pamela Freeman case Grits appended to this post, followed up with an email pointing out an aspect of the parole process that deserves readers' attention:

One of the big problems with the Board is that 97% of everyone in TDCJ is there by plea bargain. Usually the deal is cut out in the hall just before the plea is entered in many cases. There is no pre-trial hearings relative to the contents of the police report or other allegations as to what the state says are the facts of the case. As a result of that matter way too many parole cases determined  (many years later) on those old police reports which every trial lawyer who ever defended a criminal case knows always contain errors. However, too frequently in plea deals the errors are never even raised or tested under the rules of evidence. Sometimes these are serious errors. Pre-sentence reports do not correct this issue, and in state court too few lawyers fight to correct those errors once the court receives a PSI [ed. note: presumably a pre-sentence investigation file]. After all, the client has entered a guilty plea, he said he did it, lawyers just do not seem to understand how important it is that a plea is based on correct facts.

Fixing those factual problems years later is one of the things that parole lawyers do. The parole board relies on these police reports when voting a case for parole. Thus the factual issues are not really faced until the defendant faces the parole board and learns what substantial errors are found in the police reports. Most of these errors are errors which will make no difference to the innocence or guilt of the offender, but damn sure make a difference to the parole board.

This whole parole system needs to be re-examined. In all the other states I have done parole work in, none of them operate like the Texas system. THIS PROBLEM IS NOT THE FAULT OF THE PAROLE BOARD--IT IS THE FAULT OF THE LEGE. [Emphasis in original.]

Grits' obligatory ten-year anniversary post: Why are we here?

Today is the tenth anniversary of the first blog post on Grits for Breakfast, which itself subsumed a website on similar themes (hand-coded in HTML) that I'd operated since 1997. From Oct. 6, 2004 until now, Grits has published 7,975 blog posts which garnered 4.9 million visitors, 7.7 million page views and hosted upwards of 89,600 comments. More than 1,700 of you receive a daily email with links to the previous day's headlines (and if you don't, you can sign up in the right-hand column). So first things first, thanks for reading.

That said, at this milestone I should iterate exactly what this blog is and why I do it. In truth, Grits for Breakfast isn't really here for your benefit but mine. or it wouldn't still exist. Moreover, it would almost certainly exist whether it gets 2,000 readers per day or 20.

This blog serves two purposes for me as an advocate that justify maintaining it and neither of them involve maximizing readership or public-education goals. Instead, I use the blog as a clip file and a platform for developing and honing arguments for later use in policy making settings.

The clip file aspect was a life changer: Ten years ago, the office I'm writing in was lined with four-drawer filing cabinets filled with years' worth of clip files and stacks of newspapers waiting to be recycled. Today, my newspaper subscriptions are all online, reimbursed by this blog's contributors (thanks for that, btw). But every morning throughout the '90s and through the turn of the century I'd get up and retrieve four or more newspapers from the driveway, clipping out articles relevant to the issues I was working on (criminal-justice or otherwise), pasting them onto a piece of paper and scrawling a few notes by hand about what I thought was important to remind me why I'd saved that particular article.

Many blog posts on Grits are little more than went into the clip file - a link, footnote-able citation, an excerpt of money quotes from an article that may not be on the web a year later when I need it, and a few sentences saying why I think it's important, or in some cases, erroneous, linking to related information. I've eliminated four filing cabinets from my office (down to one) and using Google's Blogger software (though I've taken some techie crap for it) makes the platform and long-term storage free. As an added benefit, making my clip file public gives others who work on the issues access to the same resource. If I find it useful, the theory goes, others working on the topic will as well.

The other main use for the blog is developing, vetting, and promoting arguments surrounding criminal justice policy debates, whether aimed at legislative or other settings. Some blog posts amount to the equivalent of a letter to the editor or a constituent letter. I'll voice an opinion in a post then email the link to as many of the involved parties whose addresses I have access: politicians, their staff, agency folk, advocates, the reporter covering a story, whoever are the principals. Or, sometimes opinion leaders help out by passing the link around for me.

Such content may differ little from other letters pols or media types receive, but in their mind's eye they can't help wonder who else is reading it on the blog and its public nature gives the words just a bit more oomph. Plus, commenters help to develop, refine or even refute arguments, at their best serving as sort of an ad hoc focus group. That's one of the reasons over the years that I've become more of a stickler about deleting off-topic comments - they're simply not useful to me for the narrow purposes that motivate this blog. Oppositional comments, by contrast, are incredibly useful and Grits considers pointing out flaws or blind spots in my arguments a mitzvah. Better to confront a strong argument for the first time in a blog comment than later in front of a legislative panel.

To the extent readers find Grits informative, interesting, etc., that's an ancillary benefit. I'm glad you do and it's a happy coincidence that a medium which solved some of my own information gathering and processing needs is helpful to others as well. I'll continue to do it as long as I find it useful and, on the day it isn't, I'll quit.

In the meantime, thanks for stopping by.

Parole commissioner indictment points to swamped system

More detail has emerged regarding the indictment of parole commissioner Pamela Freeman reported by Grits yesterday. A story in the Houston Chronicle (Oct. 3) opened:

A state parole commissioner in Huntsville has been taken off the job after being indicted for tampering with an official document, accused of falsifying state records to incorrectly show that inmates refused to go to their parole interviews.

The alleged omission by Pamela D. Freeman may have adversely affected the annual parole process for five Texas inmates, prosecutors said Friday.

Freeman was tasked with interviewing inmates who were up for release and writing "parole memorandums" to help the board make a decision.

"We've only indicted her for one count, but there are five inmates that we know of," said Stephanie Stroud, First Assistant of the Walker County District Attorney's Office. "You can see how if a person writes, 'they refused to interview' that could negatively affect how the parole board votes."

Freeman denies the charges and has hired Houston attorney and former state senator Craig Washington to represent her. The Texas Tribune added this additional detail:

The case began last June when San Antonio lawyer Kevin Stouwie complained to state Sen. John Whitmire, chair of the Senate Criminal Justice Committee, and Texas Department of Criminal Justice Inspector General Bruce Toney. ...

A copy of Stouwie's complaint, obtained by The Texas Tribune, stated that on April 30, at least five inmates on the Wynne Unit in Huntsville were called into an area to be interviewed by Freeman.

The inmates and other prison workers saw Freeman at the prison that day, but said she did not interview any of the five. The men's files included Freeman's remarks that they had refused to be interviewed by her. All five were denied parole.

Contacted late Friday, Stouwie said he found out about the incident from the inmates' attorneys and is considering representing them in a civil action against the parole board.

"It's not clear to me whether they are going to reconsider those cases," said Kevin Stouwie. "They may and if they do, that could have a bearing of what happens."

Also:

This investigation is not the first time attorneys have complained about Freeman's actions, according to Bill Habern, a lawyer in Huntsville who handles parole cases and who filed a grievance against her with the board a year ago.

"She's had a long and troubled history with lawyers who do parole work," he said. "Most board members I deal with, including those on the current board, seem to be sincere, dedicated people who try to do the right thing."

Freeman was charged with interviewing inmates who who had served at least 20 years of their sentences and had never been interviewed by a parole commissioner. She was one of two commissioners based in Huntsville and has been in that post since 2004.

The Trib linked to a copy of the indictment.

Board chair Rissie Owens said the episode is not indicative of her department overall - and what else could she say? - but the truth is even on the best of days parole commissioners and board members devote precious little time per decision anyway before making a judgment to grant or deny release. If Freeman committed this offense, it likely wasn't from malice toward the individuals but from prioritizing bureaucratic convenience over the men whose fates she was deciding. To me, the episode is as much evidence of a broken system as one person's individual failings. They can't handle the volume and when corners are cut it's a function of being too swamped to focus more than a few minutes on the details of any given case.

MORE FALLOUT: I'm just tracking rumors,  I haven't confirmed this. But after I'd first seen it mentioned by a Grits commenter, another source has declared that Romulo Chavez, a retired Houston police officer and the appointed Parole Board Member in the Huntsville Office, has tendered his resignation in lieu of being fired transferred out of the Huntsville office. The anonymous Grits commenter lamented that Chavez was "the one person who had the courage to try to hold Freemen accountable for her wrongful acts."

A post on the PrisonTalk message board confirmed that Chavez is gone, elaborating that "Fred Rangel, currently a Parole Commissioner in Angleton, will be filling in at the Huntsville Panel. Board Directives have been updated to reflect he will be voting in both Huntsville and Angleton for the time being. My guess is that he will be moved to Huntsville once the position is officially vacated...Rangel owns a home in the area and bought a second home in Angleton when he was hired for that office."

This is an incredibly fluid situation, made more tenuous because it's happening less than a month before a gubernatorial election. So who knows what politics-driven decisions made in crisis-control mode might end up driving what happens in the near term?

Beyond fallout in the next few weeks, one would expect, or certainly hope, that legislative oversight would commence this fall, before the session begins, to learn the backstory behind Freeman's alleged misconduct and Chavez's untimely ouster (his term didn't end until 2019). Sen. John Whtimire and Rep. Tan Parker, chairmen of the Senate Criminal Justice and House Corrections Committees, respectively, are the two men primarily responsible for making that happen. Once they get their committees involved - and Whitmire helped initiate the complaint, so one would think he's poised to strike while the iron's hot - who knows where this rabbit hole leads?

AND MORE (Oct. 5): Parole attorney Bill Habern sent me the following discussion of the issues surrounding Freeman, Chavez and Rissie Owens via email. It was too long to include in the comments so find his full commentary below the jump.

Is Marc Levin why 'Republicans stopped being soft on crime'?

National Journal credits the Texas Public Policy Foundation's Marc Levin as the explanation for "How Republicans Stopped Being Tough on Crime." He deserves a lot of credit, for sure, along with Jerry Madden, Ray Allen, and a handful of other Texans, plus a few national figures like Pat Nolan and the late Chuck Colson. And his "Right on Crime" branding was pure genius. Congrats, Marc, on the well-deserved attention.

The article closes speculating that a Republican-controlled US Senate might be more receptive to criminal justice reform: "There you have it—prison reform, the final frontier of bipartisan legislation. But as Levin points out, there's just one last thing for Republicans and Democrats working on the issue to sort out: 'The only disagreement sometimes is who's gonna get the credit.'"

That's exactly what's happened here in Texas to change the climate on prison debates. Before Republicans came to power in 2003, the Texas Legislature would rather pass gas in Sunday School than piss off the police unions or open themselves up to the "soft" label, regardless of their personal beliefs. But many Republicans could care less about public employee unions and nobody would think to accuse coyote-shooting, kill-em-all-let-God-sort-em-out Rick Perry of being "soft," particularly because criminal justice discussions in the liberal press tend to myopically focus on the death penalty.

Once the over-incarceration issue became less politicized, budget math and common sense conspired to make reducing incarceration rates and closing three prisons kind of a no-brainer.

H/T: Sentencing Law and Policy.

RELATED: Check out a recent Federalist Society podcast featuring Marc Levin and Pat Nolan.

Roundup: Innocence in Waco, record tampering at the parole board, and other stories

Here are several items that haven't made it into independent posts this week but merit Grits readers' attention:

Judge: Waco murder defendants actually innocent
A district judge in Waco has recommended habeas corpus relief for four defendants convicted of murder in 1993, declaring they wouldn't have been convicted despite their confessions if DNA evidence had been tested using modern methods. The hits just keep on coming.

Bear justice 'tests the standards of judicial propriety'
While we're in Waco, the Tribune Herald published a blistering staff editorial this week criticizing District Attorney Abel Reyna over alleged special treatment afforded two high level staffers at Baylor University arrested for DWI. See Tommy Witherspoon's story on which it's based. This story might matter more if Democrats had fielded an opponent. We pretty much know the State Bar won't do anything so nothing can be done to rid McLennan County of Reyna for at least four more years.

Parole commissioner indicted for record tampering
The Huntsville Item is reporting that parole board commissioner Pamela Freeman has been indicted for tampering with government records. No more detail than that so far but I'm eager to learn exactly what she's been accused of doing. MSM reporters need to get on this. MORE: A reader forwarded these minimalist case details. She was initially charged The offense allegedly took place back in April but she was only indicted by a grand jury on Oct. 1. Hard to understand why this hasn't been reported before.

Banished but not rehabilitated
I was unaware exile was still a punishment utilized in 21st century courtrooms, but at least two Texas judges banished sex offenders from the state who committed assaults in their new homes, reported the Houston Chronicle late last month.  Officials are calling for the law to be changed so it won't happen again, but according to the paper, "the Texas Constitution prohibits banishment." That's law enough: What's needed are for judges and prosecutors to respect the Constitution and for offenders' counsel to defend it. Without that, changing the law won't matter much.

Houston PD can't/won't rein in bad cops
The Texas Observer's Emily DePrang last week honed in on the new scandal at HPD in which four officers peppered false information on more than six thousand traffic tickets now being dismissed, placing it in context of the department's shoddy record on disciplining its officers who engage in misconduct. She noted that the scandal is "nothing new for Houston. In 2012, four veteran HPD officers were found to have been pulling the same scheme for years, netting almost $1 million in overtime pay. Not one of those officers was fired."

Commission: Hidalgo County should spread indigent cases among more lawyers
Hidalgo County may "tweak" its indigent defense system based on recommendations from the Texas Indigent Defense Commission. Under the new rules, "The commission recommends the top 10 percent of attorneys receive not more than three times their share appointments. The top 10 percent most-appointed attorneys in the third degree/state jail felony, misdemeanor and juvenile wheels received nearly four times their share of amount of appointments." TIDC could withhold state funding for indigent defense if they don't change their appointment rules, reported the McAllen Monitor.

DeLay decision: Justice, a 'tad shady,' or outcome-based judging?
Grits hasn't closely followed the campaign finance case against Tom DeLay overturned this week by the Texas Court of Criminal Appeals (see the majority opinion), but the concurring and dissenting opinions were especially interesting. Judges Cheryl Jones and Cathy Cochran in a concurrence concluded that DeLay's actions, "Like some of Goldman Sach's dealings with a Spanish bank, the wheeling and dealing was a tad shady, but legal." But Judge Larry Meyers' dissent laid into the majority more severely than any recent CCA opinion I can recall, alleging they were taking "marching orders" from DeLay's attorney, Brian Wice. The dissent opened, "You can always tell when an opinion is written with the outcome decided before any legal analysis is done because it reads like a medical report written by a doctor who has never conducted a physical examination of the patient. This is precisely how the court of appeals' opinion comes across in this case." And the CCA's decision, he said, was "just as deficient in its analysis as the one from the court of appeals." Indeed, he wrote, "The majority in this case has changed the law and ignored the facts in order to arrive at a desired outcome, as it has done before." Ouch! I'd love to be a fly on the wall when CCA judges are deliberating some of these controversial cases; things seem to be getting more and more heated among them.

Improving access to public data
The City of Houston wants to make their records and data more accessible to the public, but the idea is being embraced more by planning and regulatory divisions than cops and the courts. My suggestion: Scan responsive data to OR requests and upload it to the web, indexed, on the assumption that if  one person is interested, others would be too. Then the next time somebody asks for it, they don't need to file a request, just email them the link. State government should do the same thing. Data storage is cheap and getting cheaper.

'Our criminal justice system is making it really hard for people to get jobs'
This article explains why Texas' business community has embraced criminal justice reform: The system has become so onerous and restrictive it's limiting the labor pool. Plus, folks without jobs don't spend money as much money as consumers who are gainfully employed.

Fourth Amendment history
Read some little-discussed Fourth Amendment history re: federal government surveillance here, here, and here. Related, from The Atlantic, "The Barney Fife loophole to the Fourth Amendment."

Video games: Spur to violence or crime prophylactic?
A new study refutes the oft-repeated assumption that violent video games make those who play them more violent. For my part, I'd go even further. Grits believes the rise of the home video game industry actually contributed significantly to reduced crime because of the incapacitation effect: the teenage boy spending hours in front of a screen playing Grand Theft Auto can't simultaneously burglarize my house. And the demographic with which video games are most popular, young men, are statistically the most likely to commit crimes.

Exposing underbelly of privatized prison food

The Detroit Free Press has been publishing a terrific series of stories about Aramark, a private vendor of prison food and commissaries which has operated at several Texas jails. See:

• Four Aramark prison workers caught in sexual romp with inmates
• Aramark prison worker accused of smuggling in heroin, other drugs
• Aramark prison worker suspected in attempted hired hit
• Aramark contract at Oakland University hindered by prison infractions
• Michigan fines Aramark $200,000 more for poor prison food service
• Prisons director canceled $98,000 fine imposed on Aramark

See also related Grits coverage from last year: "Private food vendor allegedly skimped on portions, switched to substandard ingredients, billed for unserved food."

'Meet the Smart on Crime Coalition," and other stories

Here are several items that haven't made it into individual posts but which merit Grits readers' attention:

Meet the 'Smart on Crime Coalition'
Check out the website of the new "Texas Smart on Crime Coalition" which includes the Texas Association of Business, the Texas Public Policy Foundation, the Texas Criminal Justice Coalition, ACLU of Texas, and Goodwill.

'Codifying the Rule of Lenity'
The Texas Public Policy Foundation has a new report out with the same title as this subhed. TPPF's Marc Levin recently authored a column arguing that the rule of lenity should apply in Gov. Rick Perry's recent indictment and suggesting the Legislature should bolster it via statute.

Morton, Scheck interviewed
Check out an interview with Michael Morton and Barry Scheck filmed at the LBJ School earlier this week. The two men also attended a press conference today at the capitol with state Sen. Rodney Ellis calling for expanded access to DNA cases, an issue I thought had been resolved in 2011 but which the Court of Criminal Appeals has revived with a ruling earlier this year denying testing in a capital case.

Houston crime lab gets new director
The troubled Houston crime lab, which recently became independent from the police department, has a new lab director named Daniel Garner and recently secured NIH grant funding for its DNA lab.

'Myths and Facts of Pretrial Justice'
See a video lecture from the University of Houston titled, "The Myths and Facts of Pretrial Justice"

Former SCOTX Chief Justice takes on indigent court costs
Bully for former Supreme Court Chief Justice Wallace Jefferson for taking on the issue of waiving court costs for the indigent in family law cases in a Tarrant County lawsuit. IMO Jefferson  was arguably the best appointment Rick Perry made over the last decade.

The Trial Penalty
The general counsel for Families Against Mandatory Minimums had a column in Forbes last week titled, "Wanting a trial by jury is not a crime so why do we treat it like one?"

Adios, American Judicature Society
Sorry to hear the American Judicature Society is closing its doors, though I understand the reasons. They had a good run.

Judge: Texas open records law applies to private prisons

Travis County District Judge Gisela Triana last month ruled that the Texas Public Information Act applies to private prison records, reported the blog Texas Prison Bidness. The case arose out of a lawsuit filed by Prison Legal News. This is a big deal.