Invested: Three new judges and other odds and ends

Congratulations to new Texas Court of Criminal Appeals Judges Bert Richardson, Kevin Yeary and David Newell, whose investiture your correspondent attended this morning at the capitol. Good luck, gentlemen. Make us proud. And here's wishing the outgoing judges Cathy Cochran, Tom Price and Paul Womack all the best as they re-enter private life.

In the meantime, while I'm focused away from the blog today, here are several unrelated items which deserve Grits readers attention.

• Rolling Stone has a feature story on a corrupt drug task force in South Texas that routinely stole drugs and money while on the job.
• State Rep. David Simpson from Longview offered strongly supportive comments about medical marijuana at a local constituent forum.
• Sen. John Cornyn tried and failed last fall to remove penalties for non-compliance with the federal Prison Rape Elimination Act (PREA), with which readers will recall Rick Perry said Texas won't comply.  For the record, the original PREA passed unanimously and Cornyn voted for the penalties he now wants removed.
• The State Commission on Judicial Conduct has launched an investigation into Judge Michael Seiler in Montgomery County who hears all the sex-offender civil commitment cases statewide. He's now been recused eleven times by four different judges for public demagoguery about defendants who appear before his court. The Legislature must pull the plug on this arrangement in 2015.
• Mark Bennett explained why a proposed Texas bill (HB 101) outlawing revenge porn is unconstitutional.
• Shocking, I tell you: Surveillance drones on the border are tactically useless and cost five times as much to operate as originally suggested. MORE: From the Star-Telegram editorial board.
• The Obama Administration says the FBI does not need a warrant to use fake cell-phone towers (popularly known by the trade name "Stingrays") for surveillance  in public places where, presumably, they think phone users have no reasonable expectation of privacy. As far as they're concerned, if the door to the phone booth is open they get to listen in.
• Graffiti: Beyond good and evil.

How civil rights could become a GOP wedge issue

Chris Ladd at the GOP Lifer blog made a smart and interesting case for Republicans to seize the political opportunity presented by the national uproar over black youth killed by police, arguing that:

Republicans are being handed the kind of wedge issue that comes along once in a generation and they are utterly oblivious to the gift. The last great Democratic Party constituency, African-Americans, is pitted against the party’s last great organizational bulwark, public employee unions. The waves of protests over police brutality that ignited nationwide over the killing of Michael Brown have focused on race. Protestors so far have failed to appreciate why police, like so many other public employees, are consistently shielded from accountability to the people they serve.

No one seems to have thought to combine the protests over an unaccountable police force with the protests by some of the same people in some of the very same neighborhoods, over the failure to provide a decent public education to poor and minority communities. Both problems have the same root cause – unions that shield their members from accountability.

Media narratives have simplified these protests to fit stereotypical party alignments. Republicans are seen taking their usual law-and-order stance alongside the police while Democrats advocate for social justice and civil rights. That divide is not so clear on the ground.

All of the major officials involved in the Ferguson case, from the Governor down to the local DA are Democrats. The officials investigating the Tamir Rice case in Cleveland (keep an eye on that one) are Democrats. Only in the Staten Island case are there any Republicans in decision-making roles.

Debates over urban access to effective public safety or effective public education are exclusively intraparty fights among Democrats. Despite the black community’s importance as a Democratic voting bloc, African-Americans always lose that fight with the unions. Every. Single. Time.

When the Democratic Party is faced with a conflict between a public employee union and a black urban population desperate to gain access to the public services that union is supposed to deliver, the union wins. This is the civil rights logjam that has blocked black communities from access to the prosperity that they deserve. Republicans do not own this problem and they should not help perpetuate it.

I've thought the same thing for years. Indeed, pandering by Democrats to police unions is the main reason significant criminal-justice reform didn't begin in Texas until Republicans took over the Legislature in 2003 for the first time since Reconstruction. While Dems were in charge, police unions had virtual veto power on criminal justice bills, whereas Republicans feel little need to pander to them.

Grits doubts Republican pols will seize the opportunity Ladd identifies, in part because the party contains too many elderly ex-Dixiecrats who flipped sides in the Reagan era and have little interest in civil rights or appealing to black constituents. But it's absolutely correct that the GOP has been presented with a "once in a generation" opportunity if its leaders possess the boldness and foresight to seize upon it.

Texas county jail population reports now online from 1992 to present

The Texas Commission on Jail Standards has finally put their historical monthly county jail population reports online going back to 1992. Previously they only put the previous month's report online and took it down when the next one came in so you couldn't compare current and historic data without filing an open records request.

This will be a big help to anyone researching county jail issues. Grits last summer suggested in a blog post that TCJS put these old reports online and their executive director Brandon Wood said via email that request "provided the motivation" to create the archive, though the idea had been kicked around previously.

Moreover, Wood added, "Additional historical data will be posted to include paper ready, immigration, and eventually all of the annual reports from years past." Very cool. (Okay, or maybe I'm just very uncool for thinking that's cool; either way, I like it! Data geekery acknowledged.)

Thank you to everybody at TCJS who helped put this together and to Brandon for making it happen. I really appreciate this sort of transparency and I know other researchers will, too.

Roundup: Profiles in pablum, private prison problems, prosecuting police and practical border advice

Here are several items which deserve Grits readers' attention but haven't made it into independent posts (though one or two may later be reprised in more detail).

Top private prison stories from 2014
Texas Prison Bidness has posts detailing the top five private prison stories in Texas from 2014 here, here, here, here, and here.

Profiles in pablum: Outgoing CCA judges speak up, say nothing
Chuck Lindell at the Austin Statesman profiled the three judges exiting the Texas Court of Criminal Appeals in a love-fest of a story that belied an ideologically divided court and what reportedly have been often acrimonious internal relations. I'd heard from another reporter that the outgoing judges won't discuss divisions over, e.g., the Charles Dean Hood debacle or Sharon Keller's "we close at 5" fiasco, preferring to stick to polite, platitudinous pablum about their colleagues as witnessed in this story. Too bad; the public would benefit from greater insight into one of the state's most opaque, least understood and at times dysfunctional institutions.

Police accountability activists pick tough row to hoe
The Houston Chronicle has a story about a new generation of 20-something activists focused on police brutality and law enforcement issues in the wake of the Michael Brown and Eric Garner cases. Having begun my own two-decade journey in criminal-justice advocacy over police brutality issues in Austin in the mid-90s, I'd respectfully suggest that a) most of the real changes needed must happen in state law, not at the local level, particularly in civil-service cities like Houston, and b) settle in and build for the long haul, these are not issues which will be quickly or simply resolved. In a related story, read a lengthy Dallas Observer story recounting an episode of a mentally ill man who was shot and killed by Dallas police. His brother has joined the group Mothers Against Police Brutality and the article described his dissatisfying efforts seeking answers about the incident from the department, including confronting the police chief at a public forum.

Feds may step in after El Paso grand jury cleared cop who shot handcuffed man
An El Paso cop who shot and killed a handcuffed suspect in 2013 may face federal charges. The officer was fired but (as will ring familiar these days) a grand jury chose not to indict him. El Paso DA Jaime Esparza says he is "monitoring" the case, whatever that means.

Divvying up asset forfeiture funds
See a new report (pdf) from the Office of Court Administration on state-county interactions over asset forfeiture. A good primer on how monies are divvied up. The report was requested in a legislative rider because counties get upset when DPS hands over cases with potential forfeitures to the feds instead of letting county DA offices rake in the profits, though the report found this happens mainly in the larger cases. Also, some counties are using forfeiture funds as a replacement/substitute for local funding for the DA's office, which is contrary to state law. Grits may return to this in more detail later but wanted to post the link.

From the judges
See legislative recommendations from the Texas Judicial Council.

Practical border security advice
The McAllen Monitor has published an in-depth set of editorials parsing the nuts and bolts of immigration and border security issues that deserves attention from everyone out there engaging in demagoguery on the topic, from whatever political perspective, focusing on practical rather than ideological concerns. 

'The Stranger in the Story': Not just lazy writing but bad for public policy

A New York Times' After Deadline column last month had an interesting if IMO incomplete critique of a common journalism practice, aptly titled "The Stranger in the Story."

Philip Corbett, the paper's associate managing editor for standards, lamented "how often [the Times'] feature and enterprise stories rely on that old journalistic staple, the anecdotal lead. It seemed that practically every story discussed for the front page started out by introducing me, by name, to some stranger whose connection to the point of the article would emerge only with time and patience."

The column had numerous examples from the Times of this lazy and over-used method just from a single day, though in truth it has become ubiquitous throughout print journalism, not just at the Times. In the past, journalists considered "burying the lede" a faux pas; today it's standard operating procedure.

Grits found Corbett's concerns welcome but simultaneously shallow. He wasn't worried about the way this hackneyed form can skew journalism's content, but merely that readers may tire of it: "the device can seem rote and shopworn if a reader encounters one story after another with the same approach. There are many, many ways to start a non-straight-news story; writers and editors should be looking harder for alternatives."

He's also concerned that reduced attention spans in the online era will mean introducing a stranger in the lede may prevent some readers from ever learning the true subject of the article: "In each case, we asked readers to hold on for two, three or even four paragraphs before we got to the point. That’s a lot to ask."

Of course, Corbett noted, "Sometimes the stranger in the first paragraph really is the focus of the story, not just a convenient anecdote." But even then, "we should think hard about starting out with an unfamiliar name. It can be puzzling or daunting to readers — should I recognize this name? Or it may lead readers to suspect that yet another leisurely anecdote is in store. Consider using a description in the lead and leaving the name for later," he advised Times reporters.

I agree with those critiques of this journalistic trope but find them incomplete. Last year, Grits offered a more fundamental analysis of these sorts of anecdotal ledes focused specifically on crime coverage, where I think the technique has not been just repetitive and unoriginal but actively harmful in the public policy realm. (Probably other areas, too, but crimjust is the topic on which your correspondent can most ably marshal evidence.) In an item titled "Telling stories vs. telling the truth," Grits attempted to articulate the broader issues at stake:

Failures of journalism ... help explain why the public thinks crime has increased in recent years even though all available data shows it's at its lowest rates since the 1950s in most parts of the country. The reason: Media today tend to glorify and hype crime for its entertainment value instead of placing it in context and providing useful information. The goal of American crime coverage has become manipulating readers' and viewers' emotions as opposed to increasing their understanding.

Back in June, your correspondent was invited to speak at a national Investigative Reporters and Editors conference at which I addressed this subject, offering similar observations: Back when I was coming up in the journalism field a quarter-century ago, I told them, reporters were taught to write articles along what was described as a reverse pyramid model, with the lede expressing the most important take-away from the story and anecdotes and personal details of individuals involved buried deeper down in the article.

That all changed, though, when the Wall Street Journal famously began publishing stories on their front page, left-hand column that all followed the same format: They began by telling the story of a single individual in a compelling, dramatic fashion that had more in common with fiction writing than how journalism schools taught their students. Then the articles would draw broader conclusions from the anecdote, with contextualizing information buried deeper in the article, often after the jump to an interior page. These articles were powerful for the same reason fiction writing can sometimes tell more truth than non-fiction - we all identify with personal stories and the format encouraged readers to put themselves in the shoes of the person in the featured anecdote.

Today, though, that method has become ubiquitous and virtually every story about crime follows that format, with institutional, cultural and other big-picture analyses relegated to the back end of stories if they're emphasized at all. Start looking for the phenomenon and you'll notice it everywhere. This practice, I told the conference-goers, has limits that most news outlets have come to ignore. Telling stories of individuals may promote a truth but seldom the truth. There are too many other people out there whose truths are ignored by the model and too many institutional dynamics that just don't fit into the framework. The approach encourages the media to pick and choose which stories to tell based on which ones are most likely to push their readers' buttons. The tragic deaths of black girls in Chicago or Houston may not merit a blip on the media radar screen, while the death of a cute white girl from Florida can dominate national media coverage for months.

The rise of this brand of coverage also changed how lawmakers govern in relation to crime and punishment, spurring the creation of countless laws named after dead children or high-profile victims ("Jessica's Law," etc.) that boosted punishments or minimized civil liberties. After this went on for many years, reformers got into the act, too, which is why it took the "Tim Cole Act" to compensate Texas' DNA exonerees or the "Michael Morton Act" to require Texas prosecutors to open up their files. If the media insists on covering crime this way, I told the conferees, then reform advocates can and will manipulate their coverage just like the tuff-on-crime crowd. But really, the journalistic approach does everyone a disservice and distorts the process, no matter which "side" benefits in any given instance.

Viewing public policy through the lens of a single case, however compelling or dramatic the story, inherently risks an anecdotal fallacy in which the featured example fails to explore all the nuance and/or counterarguments to the conclusions drawn from it. (TV news is even more susceptible to this than print media.) And even if counterarguments are acknowledged later, by personalizing the opening anecdote, the writer has informed the reader from the get-go with whom they're supposed to sympathize, framing the story in a way that inherently limits the terms of debate.

Unfortunately, in my experience editors and journalists seem mostly immune to critiques of the damage this method causes by warping public policy debates about the justice system. So I'm especially pleased at Corbett's more practical arguments. In the age of internet-shortened attention spans, perhaps the stranger-in-the-lede practice will diminish simply because readers won't scroll down four screens on their phone just to find out what a news story is about.

More than check-box form needed to certify juvenile defendants as adults

More from the SA Express-News (Jan. 2) on recent Texas Court of Criminal Appeals rulings requiring the state to better justify decisions to certify juvenile defendants to be tried as adults. The story opened:

For the first time, Texas appeals courts have overturned the convictions of two teenagers tried as adults, ruling that the juvenile courts did not provide enough evidence to explain why the youths were “certified” as adult defendants.

Juvenile justice advocates and some lawmakers say the two cases, both from Harris County, show that it’s past time to examine how the state pushes defendants under 17 into the adult criminal justice system. Critics say this practice, known as certification, follows a pro-forma, rubber-stamp process.

Basically Harris County was using a check-box form that allowed the judge to avoid making findings specific to the individual:

the decisions noted the Harris County juvenile court did not give sufficient evidence as to why the youths in question should stand trial as adults. Instead, it relied on a “form order” process that allows judges to check off boxes and fill in the blanks for each certification, rather than give a detailed explanation for why a defendant was mature enough, and how a crime was egregious enough, to warrant trial in the adult criminal justice system.

And here are a few data from the story on adult certification:

The number of juvenile certifications statewide has dropped in recent years, from 248 in 2008 to 209 five years later. Harris County experienced one of the biggest drops — from 78 to 29 over that same period — a shift some chalk up to a combination of increased pressure on the three juvenile judges and a greater emphasis by some to take more time on certification cases.

Smaller counties in the Rio Grande Valley and elsewhere on the Texas-Mexico border have seen a recent increase. Where Harris County’s certification rate stood at 7.4 for every 100,000 juveniles in 2013, the rates in Val Verde and Starr Counties were more than 200 times that.

See earlier Grits coverage and a recent Ted Talk on the subject by the LBJ School's Michele Deitch.

Payday lenders still getting some Texas prosecutors, courts to carry their collections water

Even though Texas ostensibly outlawed the practice, Texas Appleseed has alleged "an ongoing trend of unlawful use of criminal charges by payday loan businesses to collect debts" in a complaint to Texas' Consumer Finance Protection Bureau. Lots of juicy detail there so rather than excerpt it, I'll just say those interested should read it themselves. Bottom line: Most counties seem to have stopped, some have clearly not (whether due to confusion, miscommunication or avarice - in general, prosecutors' hot check funds are dwindling), and there's insufficient data to track the issue in close detail.

See also coverage from Texas Public Radio, Huffington Post, the SA Current, and of course The Texas Observer, whose earlier reporting launched the most recent push toward payday lending reform. Also, I was happy to see the complaint referencing a report on the topic my wife helped prepare for Consumers Union 15 yeas ago. She poured a lot of herself into this issue back in the day, so she'll be glad to learn folks are still finding CU's work product useful.

Cell phones responsible for tiny fraction of distracted driving, traffic deaths

Just a quick data-backed reminder, as San Antonio prepares for that city's ban on cell-phone use while driving to take effect next month, that the near-hysteria over drivers using cell phones often overstates the dangers this common behavior poses, which perhaps explains why laws banning phone use while driving haven't significantly reduced accidents. Reported the SA Express-News (Dec. 20):

“Since many things distract drivers, cellphone use may be replacing distractions that drivers would engage in absent phones,” [Insurance Institute for Highway Safety Vice President Russ] Rader said. “So the overall level of distraction may not be going down, even though phone use is.”

Crash statistics similarly show that for as much attention as cellphones get by policymakers and the media, they contribute to a small percentage of crashes.

There were 30,800 fatal crashes nationwide in 2012, a report this year from the National Highway Traffic Safety Administration states. Of those, 3,050 involved a distracted driver — 378 of whom were on cellphones, the federal data indicate.

That means cellphone use contributed to 1.2 percent of fatal crashes nationwide in 2012.

Federal data from 2010 to 2012 demonstrate that crashes involving cellphones account for about 5 percent to 7 percent of crashes caused by distraction, which in turn make up only about 16 percent of all crashes.

From all the "hang up and drive" hype, you'd think we'd be talking about more than 1.2 percent of fatal accidents. That figure seems low even to someone like me who's a skeptic of criminalizing common behaviors like cell-phone use. While every death is tragic, I'd have expected more fatalities than that to have been on the phone just as a matter of Bayesian probability since, from my own observation, at any given time more than 1.2 percent of drivers seem to be on the phone.

By contrast, few politicians want to talk about the much more significant cause of fatal accidents in Texas: Underinvestment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.

Failure to hire sufficient, competent lab staff hindering Austin burglary clearance rates

For many years, every budget cycle the Austin Police Department has proposed sizable expansions of the number of patrol officers while failing to boost civilian crime-scene techs and lab capacity to solve the crimes - particularly home burglaries - that rank highest on the public's complaint list. Reported the Austin Statesman (Dec. 24):

Austin police solve fewer than 10 percent of the city’s residential burglaries, a little less than the national average of 12.7 percent, according to the federal government’s Bureau of Justice Statistics.

The low number of cases “cleared” — by indicting suspects or recovering stolen property — has persisted despite 20 years of declining crime rates. Police departments across the country face backlogs of unprocessed evidence because of personnel shortages. As evidence rooms fill up, the time needed to analyze fingerprints and DNA keeps growing.

For the Austin Police Department, solving burglary cases comes down to manpower: It’s lab technicians, not detectives, who are in high demand.

Three-quarters of Austin’s more than 6,300 burglaries last year were of residences, according to police data. The department has a backlog of 1,500 fingerprints, said latent print supervisor Officer Dennis Degler.

“For the past few years, we’ve done with four examiners when we should have had six examiners,” Degler said. “We haven’t been granted any new positions, and we haven’t had any new positions in the past decade.”

Two employees were laid off because of a decision to pursue stricter standards and accreditation from an international organization, Degler said.

“We’re trying to get away from the stigma that our people were not competency-tested, that we didn’t have good quality control,” Degler said. “When you’re talking about depriving someone of their freedom through forensic evidence, credibility’s important.”

The 25 employees of the department’s recently established Burglary Unit have continued to collect more evidence than the examiners can efficiently process.

The low clearance rate cited for burglaries investigated by APD is actually higher than they've reported in the past. Still, think of it: The lack of two examiners undermining the work of two dozen officers in the burglary unit and generating hundreds of backlogged cases. Regardless, for years APD administrators emphasized patrol officers over crime lab staffing in their annual budget requests. For want of a nail,  the shoe was lost ...

It's also remarkable that, for some undefined period, APD apparently employed two people in its crime lab who were not competency tested and who fostered a perception that they "didn't have good quality control." Well then, when and why were those folks hired in the first place? How many cases did they work on? What problems triggered their dismissals? And why weren't they replaced with actually competent staff instead of letting backlogs pile up to unacceptable levels? In a lot of ways, the story raises more questions than it answers.

The Statesman story is right that crime lab backlogs are growing seemingly everywhere, overwhelmed by unprecedented demand. Even where funding has increased substantially, as at state crime labs, it still hasn't kept up with growth. Offhand, I can't think of a law enforcement agency in Texas that wouldn't benefit more from expanding forensic capacity than adding patrol officers.

Austin's new 10-1 council would do well to stop hiring ever-more patrol officers, at least for a budget cycle or two, to focus on bolstering crime labs, the 911 call center, and other civilian components of the police agency which the old council ignored in favor of paying for ever-more uniformed officers. If the city wants more police coverage, there are ways to do that without a budget increase.

John Wiley Price discovery measured in terabytes, and other stories

Here are a few items which failed to make it into independent posts over the holiday but deserve Grits readers' attention:

Violence, not jobs, driving current immigration trends
Traditionally undocumented immigrants entering Texas came because of jobs. Increasingly they're people fleeing violence, death and chaos. El Paso has witnessed an influx of refugees from the states of Michoacán and Guerrero because of extreme drug violence there, mirroring the causes of a mass influx of children from Central America earlier in the year. 

Abbott may back bills to help ex-felons get jobs
Apparently incoming Gov. Greg Abbott supports scaling back occupational licensing restrictions to help more ex-felons get jobs, a measure backed by the Texas Public Policy Foundation and championed in the linked story by state Sen. John Whitmire. Given that, expect some movement on this in the coming session, though to what extent remains to be seen. "In Texas, where about a third of the jobs are licensed, that means fewer opportunities for those with a criminal past. Advocates of modifying the current licensing laws say the change could get thousands more Texans working and paying taxes and get many off welfare-assistance programs."

When the prosecutors' open file has 150 million pages
Though the figure seems unbelievable, in the John Wiley Price federal corruption case, according to the Dallas News, “Prosecutors reportedly have about 6.5 terabytes of digital information to turn over to the defense. That does not include audios, videos, photographs, tax documents or 'materials too bulky to scan,' a defense motion has said. The government has estimated that 2.5 terabytes of data will remain after 'processing and culling.'” According to the News, "That is roughly the equivalent of 150 million pages of material."

Turn out the lights: SAPD chief to leave, work for electric utility
San Antonio police chief William McManus is leaving after nearly nine years on the job to head security at the city's electric utility, reported the SA Express-News in an outgoing profile.

Novelty act?
Is the new client choice model of selecting indigent counsel in Comal County a bold new strategy or a novelty that distracts from larger issues of insufficient resources?

How to judge homicide clearance rates?
With a 65 percent clearance rate at Houston PD, "A [Houston] Chronicle review of homicide cases in Houston from 2009 through the first half of 2014 found at least 353 investigations that remain open. Stepping back through the years, the number soon tops 1,000." Parents of victims in unsolved cases insist more should be done; detectives insist when they've exhausted all leads, that's what there is to do. Broken out by race, clearance rates are highest for whites, lowest for Hispanics. The department got into trouble this year when it was revealed a detective wasn't investigating some cases assigned to him at all, so it's understandable the homicide clearance rate is a sensitive subject. In a city the size of Houston, it's unrealistic to expect 100 percent of murders to be solved.  But lamentably, any outcome short of perfection will leave the department with some very emotional and unhappy detractors among families of victims in unsolved killings. Oddly, homicide rates have fallen nationally in recent years during a period in which murder rates have also radically declined. So, surprisingly, the data show little if any correlation between solving murders and reducing their number, to the extent that's any consolation.

Restorative justice in schools
School districts across the state, including several in Bexar County, are experimenting with restorative justice models for student discipline.

Perry pardon grinch at final Christmas as governor
Humbug! No Christmastime clemency from Rick Perry on his way out the door, so apparently these four piddling pardons from October will be his last as governor. Here's hoping Greg Abbott's team will make a New Year's resolution to embrace clemency with more vigor over the next four years rather than treating it as a symbolic Christmas ritual with little real practical effect.

Three stories from the darker side of Texas history
On my personal blog, recently I wrote about three murderous Texas land grabs - targeting Mexicans, Native Americans, and black folks - about which Grits was never taught in school. Were you? As fat as that 7th grade Texas history book was, you'd think they could have fit these stories in.

Will new Bexar DA back post-conviction innocence reviews?

A profile of outgoing Bexar County DA Susan Reed in the SA Express-News (Dec. 27) mentioned, while recounting her "missteps" sandwiched between mostly positive reviews, that "Her refusal to appoint a special prosecutor to review claims that Ruben Cantu was wrongly executed in 1993 after an eyewitness reportedly recanted. The decision raised eyebrows because Reed, as a judge, had denied one of Cantu’s appeals and set his execution date. A 19-month investigation by her office found Cantu was not wrongly sent to the death chamber." (See prior Grits coverage of that misbegotten DA's report.)

This recollection made me wonder: Will incoming DA Nico Lahood re-open that investigation, and more broadly, might he create a post-conviction review unit like Dallas' much-ballyhooed Conviction Integrity Unit to vet potential innocence claims? The new Tarrant DA has pledged to create one, and the new Dallas DA reportedly will continue efforts in this vein begun by her predecessor.

Workmanlike judging may be an asset for Bert Richardson on Court of Criminal Appeals

Peggy Fikac has a nice profile in the SA Express-News (Dec. 25) of incoming Texas Court of Criminal Appeals Judge Bert Richardson, whom Grits had supported in the GOP primary due primarily to his knack for not being Barbara Walther. I got to know him a bit over the course of the campaign, though, like him a lot, and am hopeful about his prospects.

Fikac's story was prompted by Richardson presiding over Rick Perry's indictment, but given that in January he'll begin a six-year term on Texas' high criminal court, CCA watchers may be interested in the assessments offered of Richardson's background and judicial skills. Lately, since losing a judicial election in Bexar County in 2008, Richardson has worked "As a visiting judge whose territory includes multiple counties," wrote Fikac, "he has been handling everything from a regular prison docket in South Texas to high-profile murder cases." However:

in his spare time, he works as a freelance photographer shooting sports for a running magazine and capturing moments around his San Antonio home, at the Texas Capitol or in the counties he visits in his day job.

For Richardson, photography provides a focus on something outside the courtroom.

“They’re so completely different. That’s why I like it,” Richardson said, adding with a dash of wry humor that acknowledges the perils of covering sporting events, “I can just forget about what I do, and nobody knows who I am when I show up at my other job — and get bossed around by cops and pushed around by photographers, reporters and track officials.”

St. Mary's law prof Geary Reamy “said Richardson, whom he described as 'very humble and unassuming,' also 'seems unflappable.' He said Richardson is widely respected by people of 'various political and legal persuasions,' including Democrats, Republicans, prosecutors and defense lawyers
'as being somebody who’s fair-minded. He’s very even-handed.'”

Richardson is "The son of an Air Force fighter pilot," wrote Fikac, who "graduated from Brigham Young University in Provo, Utah. He did his Mormon mission in Argentina (he’s fluent in Spanish). He considered entering the photography program at the Art Center College of Design in California. Instead, he returned to Texas for law school at St. Mary’s."

Judge Richardson "served as an assistant district attorney in Bexar County before a year in the U.S. attorney’s office," then "was appointed in 1999 to the newly created 379th Judicial District by then-Gov. George W. Bush to fill a vacancy and presided over high-profile cases. ... He was twice elected to the post, then lost the seat to a Democrat in 2008." Since then, "He ended up becoming a visiting judge and said in more than five years has presided over cases in more than 40 counties. He also teaches at St. Mary’s and is “of counsel” to a San Antonio law firm, LM Tatum."

Endearingly, Richardson "continues his photography, shooting the University Interscholastic League cross-country meet in Round Rock just days after the general election." Indeed, “Lance Phegley, editor of Texas Runner & Triathlete, called Richardson 'our ace of aces. He is one of those guys that -- he will do anything. He’s an awesome guy. He’s an incredible photographer on top of that. … If I send Bert to shoot something, I know he’s coming back with the best shots.'” That to me is as persuasive an endorsement as any attorney could give him. The guy showing up to photograph the UIL cross country meet in Round Rock knows how to check his ego at the door and get the job done, which is a quality sorely needed on Texas' personality-and-outcome driven high criminal court.

Even so, you can never predict with appellate judges at this level how somebody might do. There are skill sets involved at which no one can have practiced until they're on the dais in Austin. Certainly, they're not learned on the trial bench. The lawyering is perhaps the easy part; there are clerks for much of that. Good writing is important, though clearly not universally required. But the politics of obtaining five or more votes for opinions, much less uniting the court, is the true, secret art of appellate judging on which the media seldom focuses. There's an expressly political aspect to judging at this level - as evidenced by a formal vote on each case among nine judges - and navigating the politics is as much a part of the job as applying the law and writing opinions. You never can tell until somebody's on the court whether they'll have the ability to construct majorities or merely express their opinions, falling into line as part of an existing faction. Time will tell. Meanwhile, Richardson and the other two, new incoming judges have a steep learning curve ahead of them, as much on the backroom political side as the legal end.

Recusals of civil-commitment judge call process into question

The lone Texas judge in charge of "civil commitment" of sex offenders has been removed from eight cases recently over prejudicial comments, probably with more to come, reported the Conroe Courier (Dec. 24).

The recusal of a Montgomery County district court judge has been granted in at least eight civil commitment cases since September, according to records at the District Clerk’s office.
Judge Michael Seiler presides over the 435th state District Court — Texas’ only court responsible for handling civil commitment cases of sexually violent predators. Seiler was dismissed from six cases Dec. 11 by Senior Judge Ned Dean for either reasonably questionable impartiality or a personal bias against the subject matter or a party involved in the respective cases, records show.

There are more recusal motions pending, while those already granted call into question whether Seiler can objectively preside over the roughly 50 civil commitment cases heard in the court annually.

At issue are a series of of speeches he gave to Tea Party and Republican groups in which he suggested eliminating jury trials for sex offenders and opined that castration would only work to deter sex offenders if it occurred at neck level. He adopted a campaign slogan dubbing himself "a prosecutor to judge the predators" in the GOP primary in Montgomery County, making no apologies for his one-sided approach to judging these cases.

The surprise here isn't so much that a judge holds these views but that he's thick enough to voice them repeatedly in public forums where eventually, inevitably, somebody stuck a video on YouTube. Talk about your unforced errors; that's pretty brazen!

The question becomes, if the only judge in the state hearing civil commitment cases can't be impartial and is routinely recused, how long is the situation sustainable where all those cases are funneled through his court?  With the Legislature convening in a month, might they decide to upend the scenario, perhaps shifting civil commitment proceedings back to their county of origination instead of sending them all to Judge Roy Bean Seiler over in Montgomery County, where apparently they'll be distributed among visiting judges for the foreseeable future?

The whole civil commitment program has been a hot mess from the get-go. But capped off with this news, in 2014 its disgrace reached new depths.

Deitch on juveniles tried as adults

See the LBJ School's Michele Deitch's TedX talk at Amherst College on juveniles being tried as adults, taking a national look at a process which in Texas recently became more rigorous in the wake of a recent Texas Court of Criminal Appeals ruling.

Journalists lack bias or agenda 'just as sure as there is a Santa Claus'

In a spirited defense of professional journalism this week in the San Antonio Express-News, Maria Anglin referenced the vintage Christmastime editorial classic, "Yes Virginia, there is a Santa Claus," and assured her readers that "just as sure as there is a Santa Claus, there are journalists reporting without bias or agenda."

I agree. Both those things - the existence of Santa Claus and journalists reporting sans bias or agenda - are equally likely!

Merry Christmas, folks.

See related Grits posts:

• What is the real crisis in journalism?
• Ten maxims for making journalism relevant in the 21st century

Simpson on civil forfeiture: Where fences of presumed innocence and due process have been torn down, we should rebuild them

State Rep. David Simpson had a column in the Dallas News this week (Dec. 22) decrying civil asset forfeiture. His article concluded:

One law enforcement agent told me he never uses the criminal forfeiture process because the civil asset forfeiture process is much easier. You don’t have to convict the owner of a crime.

How can government do that, you ask? Well, to get around constitutional issues, lawmakers at both the state and federal level have created a dual system whereby the assets of an individual are named in a case, not the individual. Our state also has a low threshold to show that the property may have been used in illegal activity. Moreover, the owner of the seized property is presumed guilty until he or she can prove their innocence in obtaining the property legitimately. Many owners do not even try to recover their assets because the cost of obtaining legal representation may exceed the value of the confiscated property.

If government officials were omniscient and could never make mistakes, this would not be a problem. One official could be lawgiver, king and judge. Criminals could be stopped immediately and efficiently, and no innocent citizens would be punished.

But like citizens, government officials are not angels, so our constitution limits their power and separates it. It requires that they pursue justice justly, knowing that their power can, wittingly or unwittingly, treat innocent people like criminals.

Our constitutional restraints on government power are like fences; they keep the honest people honest. Where our fences of presumed innocence and due process have been torn down, we should rebuild them.

Michael Morton Act costs, and the costs of failing to disclose exculpatory evidence

Travis County officials are grumbling at the costs of implementing the Michael Morton Act. Reported the Austin Statesman (Dec. 23):

The Michael Morton Act, named for a Williamson County man who spent 25 years behind bars for the murder of his wife before DNA evidence proved his innocence, requires prosecutors to produce all potentially exculpatory evidence before trial and to inventory and make copies of all evidence. It went into effect Jan. 1.

In June, Lehmberg and Escamilla requested 17 new staffers to deal with the act, and the commissioners approved eight. But the backlog of cases that hadn’t been approved for compliance with the act continued to grow — it was 5,172 in mid-December — and the prosecutors’ offices a week ago asked for 12 more employees.

Biscoe said Tuesday he was “not happy” that the Legislature indicated that the act would have a minimal impact on county budgets.

“That’s just not the case,” he said. “The fiscal note (for the law) was faulty.”

Five of the six largest counties have added staff because of the act. Travis County has added the most.

On the flip side, in Houston we find an example of the costs of prosecutors failing to turn over everything in their files to the defense. Former Harris County DA candidate and Cold Justice reality TV star Kelly Siegler found herself on the dock defending her decisions about what evidence to give to defendant David Temple's counsel in a high-profile murder case. Reported the Houston Chronicle (Dec. 22):

Attorneys for Temple, including his lawyer at trial Dick DeGuerin, have long said Belinda Temple was killed by teenage neighbors who were interrupted during an after-school burglary. In motions filed after the case was re-opened, Deguerin and other lawyers have accused Siegler of withholding information about the teenaged neighbors.

During contentious questioning by attorney Casie Gotro, Siegler said she turned over evidence about several shotguns recovered in 2009, the teenage neighbor and his friends along with other information she decided was relevant.

However, she said determining whether evidence was Brady information often fell into a "gray area." She said she did not turn over evidence of every "rabbit trail" and "kooky lead."

One of those "kooky leads" was a neighbor's wife who called police to tell them her husband had killed Belinda Temple. Siegler said detectives investigated the story and decided it was not true and that she did not turn it over to the defense.

"When the defense is to just throw mud at the wall and see what sticks," Siegler said. "Brady is an impossible burden."

The former prosecutor also found herself hamstrung by the lack of detailed notes in her files about when she turned over the evidence or told DeGuerin.

"I don't remember," was a constant refrain during more than five hours of questions, which are expected to continue Tuesday.

The legal issues in the case include the claim that Temple's due process rights were violated by prosecutors withholding Brady information, an ineffective assistance of counsel claim against DeGuerin and that Temple is "actually innocent."

After hearing from more than a dozen expected witnesses including Siegler about the investigation and the prosecution, Gist will issue findings of fact and conclusions of law to be reviewed by Texas' highest court. That court would decide if Temple gets a new trial.

Clearly, had the Michael Morton Act been in place at the time of Temple's trial, this situation could have been avoided. Even if Temple is guilty, the expense and difficulty of retrying him should not be underestimated. But what if Temple is innocent and the alternative suspects really did it? Then, the tangible and intangible costs grow much higher. Siegler was operating under different rules when she prosecuted Temple and Judge Gist will decide whether she followed them. But the whole situation exemplifies the sort of problems the Michael Morton Act was intended to solve. Counties understandably grumble about another unfunded mandate, but opening up prosecutor files also prevents future costs by reducing errors and appeals. And it makes the adversarial system more robust and less one-sided. That's worth something, too, even if it doesn't show up on the accounting ledger.

BTW,  does anyone else find it odd that these prosecutor offices, which for years insisted Texas didn't need an open-file law because they already all had open-file policies, all of a sudden need extra staff to comply with a law they said was redundant with what they were already doing? Perhaps some of those titular open-file policies we were told about prior to the act's passage weren't quite as open as was portrayed.

TDCJ: Reporting change explains death-in-custody statistics

It wouldn't be the first time, but TDCJ spokesman Jason Clark says I was wrong in this post when I speculated that healthcare staffing cuts contributed to increased deaths in custody. Instead, he said, the agency began filing death-in-custody reports with the Attorney General for inpatient hospital deaths for the first time in 2013, tripling the number of death-in-custody reports to the AG from the previous year. Jason wrote in an email:

I read your post correlating healthcare cuts to an increase in in custody deaths. This is not accurate. The TDCJ Office of the Inspector General completes a custodial death report form for each death in TDCJ, with the exception of executions, and sends the completed form to the Office of the Attorney General.  Prior to 2013, the OIG only completed forms for unattended deaths (deaths that did not occur in an inpatient setting).  Beginning in January 2013, they began completing the form for all deaths. This accounts for the apparent increase. As you can see below, the number of deaths while in custody has remained relatively consistent.

2007 – 436

2008 – 469

2009 – 424

2010 – 382

2011 – 418

2012 – 463

2013 – 443

2014 – 389 (through November)

Note TDCJ reports all inmate deaths to the Bureau of Justice Statistics.

Here's the BJS report (pdf) he mentioned. Grits asked Jason what was the reason for the reporting change and for a breakout of "unattended" deaths for the last couple of years for an apples to apples comparison and I'll update this post if and when he responds. But I wanted to publish a correction/clarification ASAP before checking out for the holiday.

Chihuahuan prisons achieve ACA accreditation, end self-regulation by convicts

Read a feature story and editorial from Corrections Today on the transformation of prisons in the Mexican state of Chihuahua, which includes the city of Juarez across the river from El Paso and shares borders with Texas and New Mexico. Over the last four years, funded through US grants via the Merida Initiative, they've made the shift from "self-governed" facilities ruled internally by convicts to being accredited by the American Correctional Association, a task which took about three years to renovate all facilities and hire and train staff. Since then prison authorities have seized:

1,500 gallons of alcohol; 73 long guns; 32 explosive, fragmentation and blast grenades; 13,762 steel-edged weapons; and other prohibited items as of Oct. 1, 2014. These seizures were only the “tip of the iceberg,” because every single action also detected illegal acts inside the prisons, such as cockfights, musical performances and even horse racing. This reflected the unlimited power and control the criminal groups used to have inside the walls of [Chihuahan prisons], enough to even plan and order kidnappings, extortions and other crimes.

The self-governing internal economy of Chihuahuan prisons was legendary so news of ACA accreditation, to me, is stunning. The professionalization of Mexican corrections, if sustained, would be a huge development, especially if other states replicate Chihuahua's model. Change can't come too soon.

Eyewitness ID lesson: 'Anything you try to change, there's going to be a backlash'

Scripps News Service posted a feature yesterday by Isaac Wolf titled, "Dallas leads the way in addressing wrongful convictions," crediting outgoing Dallas DA Craig Watkins and former police chief David Kunkle in particular for implementing science-based eyewitness identification standards before the Texas Legislature required departments to create such policies. The story concluded:

[Dallas police Lt. David] Pughes knew he would face belligerence when he walked into a training session in the spring of 2009. The officers were eager to defend their integrity and worried that his system would make it harder to get evidence.

As Pughes fired up his Powerpoint, Det. Steve L’Huillier interrupted from the front row. With nearly 30 years on the force, L’Huillier was insulted. “How dare you accuse us all of wrongdoing?” L’Huillier said. “If we had a few cases that resulted in wrongful convictions, that’s a tragedy.” Those were rare exceptions, he argued.

But police had no experience from an eyewitness perspective, Pughes told them. “Once you are able to sit in their chair, walk in their shoes for a minute, the officers came to the realization that picking someone out of a lineup is much more difficult than what you’d think on the outside looking in,” he said.

State lawmakers saw wisdom in the new system too and proposed witness identification reform across Texas. A vigorous lobbying campaign by the Houston Police Union opposed it and the bill failed. But a similar measure succeeded two years later.

A survey last year by the Police Executive Research Forum found that more than two-thirds of police departments in the U.S. still don’t take the most basic step to reduce errors in witness identification: requiring a person unfamiliar with the case to show the lineup. Brandon Garrett, a University of Virginia law professor and expert on wrongful convictions, has watched the opposition succeed time and again. “It’s kind of remarkable how long it takes to make changes that really help the police,” he said.

Kunkle retired in 2010, and this fall Watkins lost a contentious bid for reelection. But their work left an indelible mark, including on Dallas homicide detective Scott Sayers, who had opposed the ID changes. Sayers, who joined the force in 1995, was convinced that killers would get away with their crimes. “In the end, I think that was false,” Sayers says now, adding that the system also better protects officers from court challenges.

Which doesn’t mean the going will be any less contentious next time. “Anything you try to change,” he says, “there’s going to be backlash.”