Complaint vs. magistrate judges over assembly-line #bail hearings

Senate Criminal Justice Committee Chairman John Whitmire filed complaints this week against three Harris County magistrate judges -  Eric Hagstette, Jill Wallace, and Joseph Licata III - after the Houston Chronicle published video of the assembly-line justice which has become routine in Texas' largest county. See his press release. Here's the video in question:

Reported the Chron's Lise Olsen:

The videos of hearings recorded in May right before the lawsuit was filed show that each case takes just minutes. Some get seconds. 

Almost no one wins pretrial release. Not the mentally ill. Not first-time offenders. Not people who dare to address the judges and request consideration because of poverty, jobs or parenting duties. 

Hearings are not attended by defense attorneys; typically just prosecutors and hearing officers are present. 

Activists argue that Harris County should provide both defense attorneys and alternatives at bond hearings for the mentally ill and for first-time or youthful offenders, and expand the use of personal bonds.

Two of the judges in these videos, Hagstette and Licata, weren't satisfied with denying defendants bond, they had to lord their authority over them. Licata increased a woman's bail because she answered "Yeah" instead of "yes." Pleas of special family circumstances or potential lost jobs fell on deaf ears. One defendant tried to explain why he should be released was told by the judge to save it for his defense attorney. Of course, the whole point of the lawsuit is that indigent defendants don't get a defense attorney at bail hearings, so the man had no one to represent him before the court to whom the judge would listen.

By all accounts, judges in Harris County are doubling down on litigation, throwing big bucks at private attorneys to defend these practices instead of reforming their probably unconstitutional bail system. It's hard to understand, after seeing these difficult-to-watch videos, what greater good or core values they think they're defending.

MORE: From the Houston Chronicle.

Crappy criminal-justice reporting demonstrates journalism flaws exploited on national stage

“A lie ain’t a side of a story. It’s just a lie.”

                                                                  - Terry Hanning, The Wire

Since the presidential election, the national press has been struggling with the question of what to do when a politician is willing to tell outright lies and make assertions completely contrary to all available evidence. But the truth is, this was a problem long before Donald Trump threw his hat in the presidential ring. And the problem is perhaps worst in local coverage of criminal-justice topics.

Take, for example, this missive from the Bryan-College Station Eagle,  informing us that "the Brazos County Commissioners Court voted this week to approve hiring an additional state prosecutor to study how an extra attorney could help push cases through the criminal justice system."  The justification for the extra expense?

As the population of Brazos County continues to increase, law enforcement will have to continue to respond to an increase in local crime. Space will be set aside in the Brazos County Courthouse after renovations are complete for a fourth district court, to be used when needed. But [District Attorney Jarvis] Parsons said it's important not to go too big, too fast. Hiring more prosecutors could be an intermediary step, he said, one that leaves a much lighter financial footprint. 

"With an increase in populations comes an increase in crime," he said. "The last thing you want is be understaffed to deal with the massive amounts of people who have moved to this area and are going to move to this area."

Here's the problem with that analysis: Crime in Brazos County has gone down, not up, as the population increased. See crime stats for Brazos County for the last decade or so. Not only are rates (crimes per capita) down but also raw numbers for most crimes, and certainly the high-volume ones which occupy prosecutors' workaday duties. Brazos saw 549 burglaries in 2014 compared to a recent high of 1,207 in 2005. Thefts in 2014 were at 1,865, down from a high of 3,140 in 2004. There were 207 assaults in Bryan in 2014 compared to 550 in 2004.

So it's just false for Brazos County officials to pretend that a) crime is rising or b) that the amount of crime inherently rises with population. Neither are true. But the DA can make those claims confident that the reporter will merely quote what was said and not fact check it or hold him accountable.

This example helps explain why Americans believe crime is increasing when really it's falling. Reporters all over the country repeat this pattern every single day, quoting tuff-on-crime goverment voices from local police departments and DA's offices without fact checking their statements or seeking out contrary views. Local TV news, in particular, is rife with examples, but as with the Eagle reporter, print media are culpable, too.

This deferential methodology is precisely the flaw in American reporting that Donald Trump exploited to lie his way into the presidency. He'd make some ridiculous claim that 30 seconds of fact checking on Google would have refuted. But instead of evaluating the lie and either calling it out or declining to report it, reporters would avidly promote false statements as valid discourse. At most, they'd seek to "balance" lies with "the other side," almost always represented by a partisan voice whose motives could be discounted.

But a lie isn't "the other side" of the truth, it's just a lie. And reporters have become too habituated to letting them slide, allowing the he-said, she-said journalistic form to mask self-interested agendas. That defect in American journalism was made more glaring during the presidential election, but it by no means originated during this election cycle.

For an alternative approach, see here.

Gifts or Bribes? Prosecutor took donations from defendants who received leniency

This is a rather stunning story out of Brown County, and affirms why it was never a good idea to allow prosecutors to accept bribes gifts from people in their jurisdiction.

Most prosecutors in Texas are barred by state law from taking gifts from people in their jurisdiction. Among the ethical questions such arrangements could raise, the most basic is that a defendant could simply buy his way out of punishment for a crime. Yet for nearly a decade, the Brown County Attorney’s Office has arguably done something similar. [County Attorney Shane] Britton has made “donations” from defendants the foundation of a pretrial diversion program that lets people avoid prosecution for drunk driving, driving without a license, shoplifting and other misdemeanors. In this way, hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar, according to county records. By covering other office costs with donations, Britton was even able to convince county leaders to boost salaries for himself and his staff.

In Texas, paying for cops, courts and prosecutors with fees from defendants has gotten more and more popular over the years. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor? 

Only in the last year has Britton’s office started to get critical attention from the county’s legal community. And in the tight-knit courthouse, it’s hard to miss the Texas Rangers collecting records regarding his office, or the rumors of an FBI investigation into whether donations were accepted off the books. When county leaders commissioned a forensic audit of the fund, they found huge gaps in record-keeping that suggested, at best, a casual approach to taking money from defendants. At worst, his critics allege, he ran an illegal collection scheme for over a decade that blurred the lines between fees, donations and bribes.

Read the whole thing, and kudos to Patrick Michels of the Texas Observer. He did a great job with this story.

Revisiting Grits' Ten Maxims for Relevant Journalism

As journalists across the nation engage in incessant navel gazing over how to reconstruct their profession's practices in response to replicable manipulation methods exposed by the presidential election, it's worth reminding folks of Grits "Ten Maxims for Making Journalism Relevant in the 21st Century." Looking back at that piece, now written nearly four years ago, they all still seem directly applicable, right down the line. Indeed, in the Trumpian era, the first and tenth maxims, in particular, should rule above all.

DPS surge resulted in harassment of border-area drivers

Grits isn't sure at this point why journalists bother examining performance outcomes or cost-benefit analyses when it comes to immigration or border security. Somewhere during the 2016 presidential campaign cycle, debates on these subjects passed wholly through the looking glass and pols now feel free to just say stuff without any reference to facts or reality.

Regardless, the Dallas News gamely demonstrated yet again, if further evidence were really necessary, that Texas' much-ballyhooed border security buildup has been a public safety bust. During the period after the DPS surge began, traffic tickets in areas with expanded patrols increased slightly. But the big change came in traffic stops resulting in warnings, which skyrocketed more than five-fold almost immediately.

That means DPS is stopping a lot more people but in most cases there isn't enough criminality present even to justify giving them a ticket. So tens of thousands of South Texans were being subjected to unjustified pretext stops which are basically fishing expeditions, not detentions based on legitimate public safety needs. Justifiably, reported the Morning News:

some critics continue to charge that DPS remains unable to prove real success at the border beyond boosting traffic enforcement. 

“For that level of scrutiny on your driving habits, what are we getting?” said Rep. Poncho Nevarez, an Eagle Pass Democrat who serves as vice chairman of the House Homeland Security and Public Safety Committee.

Moreover, both citations and warnings dropped steeply across the rest of the state as DPS diverted resources to staff up the border surge, found the paper's analysis. "Comparing the two years after the surge against the two years before, citations spiked 30 percent and warnings rose 160 percent in Starr and Hidalgo counties. In nonborder counties, meanwhile, citations dropped 21 percent and warnings fell 25 percent."

Some individuals were subjected to a level of intervention which can only be described as harassment. Almost unbelievably, "Looking at the 22 months after the surge began, The News found more than 600 people in Starr and Hidalgo counties who were stopped at least 10 times. More than 300 were stopped at least 20 times. One person was pulled over 52 times in that time period."

With the new president pledging to begin construction of his "beautiful" new wall on "day one," we're already hearing open discussion among Texas Republicans of ending DPS' border deployment and letting the feds handle the job. Even though that's clearly a self-justifying fig leaf, IMO legislative critics should let them have this one, take "yes" for an answer, and seek to end the $800-million-per-biennium pork package, freeing up the money to use for other priorities.

State leadership isn't going to end this wasteful boondoggle because it's failing to achieve good outcomes or doesn't make cost-benefit sense. That ship long ago sailed. We must recognize that this budget item originated as a partisan slap at the Obama Administration, not in response to real-world public-safety threats. So, having been spawned of overt partisanship, that's probably the only basis on which the DPS surge can realistically be rolled back while giving state leadership sufficient political cover. I'd be fine with that.

Convenience vs. the Constitution: CCA habeas procedures value former over latter, says high-court judge

Thanksgiving is over, but Grits is grateful for Texas Court of Criminal Appeals Judge Elsa Alcala, without whom I wouldn't have been aware of this major problem with the court's habeas corpus procedures.

In an opinion released this week, Alcala pulled back the curtain on the court's internal policies to reveal how most habeas writs are decided by a single judge, in her opinion in contradiction to requirements in Texas' Constitution and statutes. This is a must-read opinion for anyone interested in Texas habeas corpus matters.

Basically, the CCA has identified entire classes of cases which are segmented out by staff and routinely denied by a single judge. Alcala agreed the writ in this case should be denied, but filed this concurrence to expose problems with the process.

In Alcala's view, "the Texas Constitution requires a decision by a quorum of judges on this Court, and thus a denial of habeas relief by a single judge on this Court fails to comply with this requirement." She believes that, "the Texas Constitution’s mandate that a quorum of judges decide this Court’s cases is not satisfied by what is effectively a standing order of this Court that permits an individual judge to act as a proxy for a quorum of the judges on this Court on the basis of a pre-vote on a category of cases that are never actually individually seen by any judge other than the proxy judge."

In non-death penalty cases, she points out, the Texas Constitution (Art. V, Sec. 4) permits a panel of three CCA judges to consider habeas writs, but not individual judges as is this court's practice. In a panel of three, two judges constitute a quorum. So by that reckoning, at least two judges must participate for these writ denials to be valid.

The Texas Constitution does give individual members of the CCA power to issue habeas writs, she argues, but not to deny them. And in any event, the court's authority "is subject to regulation by the Legislature, which has decided not to permit the exercise of that power for Article 11.07 writs," which is most of them. Those writs are issued through the convicting court and the CCA's statutory role only begins after that court does its work.

The issue is important because there are three, maybe four CCA judges who reflexively side with the government in all cases. These judges can be counted on to reject defense arguments not so much because they're wrong, but simply because they come from the defense, whom they like to blame even for problems that prosecutors cause. So any writ that goes to Sharon Keller, Barbara Hervey, Michael Keasler, and in non-death cases, probably Kevin Yeary, are apt to get rejected and round-filed no matter what the situation. The court remains sharply divided and the difference between how different judges might view cases is substantial.

In that light, requiring at least two out of three judges on a panel to consider a case provides at least some check on members of what Grits has dubbed the Government-Always-Wins faction on the court, which includes the Presiding Judge who assigns cases. If the answer to a habeas petition is just that "Michael Keasler said 'no'," it's hard to assess whether that's because the petition itself was inadequate, or just because certain judges walk into most cases having settled on a predetermined, pro-government outcome.

IANAL, so I'm not sure what recourse there is when a majority of high-court judges choose to disregard the law for their own convenience. (Maybe such things can get appealed to SCOTUS? Some more knowledgeable person, please enlighten us in the comments.) But Judge Alcala deserves thanks for making public an internal, procedural practice that violates the constitution and limits the application of justice. If she didn't say something, how could we know?

CLARIFICATION: The original post implied individual CCA judges could "grant" habeas writs when Alcala's opinion made clear they may only "issue" them, ordering a defendant to appear before a trial-court judge. In her view, individual CCA judges are not authorized to grant or deny 11.07 habeas writs under their own authority. Read Alcala's opinion for a more complete explication of these issues. Grits regrets any confusion.

Black Friday #cjreform reading list

Grits plans to spend some of the weekend catching up on my reading, and thought I'd share links to a few recent academic articles I'm hoping to get to in the coming days:

"The Constitution of Police Violence": "[T]he same legal framework that authorizes and normalizes the ordinary traffic stop also permits and even encourages killings of unarmed suspects."

"Out of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution, and Constitutional Limitations": If fines and fees "serve a primary or even exclusive revenue raising function," should they be classified "as emanating from exercise of the taxing rather than the policing power of the municipality"? The article focuses on Missouri, where anti-tax ballot initiative by voters helped spur reliance on fines and fees for revenue.

"Consolidating Local Criminal Justice: Should Prosecutors Run the Jails?": Would making prosecutors responsible for jail costs limit incentives to overuse incarceration for misdemeanors? One occasionally hears pie-in-the-sky suggestions that counties should pay for incarceration in state prisons for offenders convicted in their jurisdictions so that prosecutors have skin in the game when seeking harsh, expensive punishments. This article usefully extends that analysis to the misdemeanor level, where such a transformation might be easier to implement.

"Imagining Perfect Surveillance": A fascinating (and somewhat optimistic) thought experiment about what future "perfect surveillance" might look like and how it might affect the justice system.

"Immigrant Protective Policies in Criminal Justice": In the wake of Trumpian calls for deporting immigrants with criminal records, this article's suggestion for an "equality" based message and approach holds promise as a means for "formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities."

"Body-Mounted Police Cameras: A Primer on Police Accountability vs. Privacy": Might privacy concerns over police body cameras make them a detriment to community policing? And as exceptions are made to whom and when police record, might accountability benefits decrease? These and other emerging, unresolved issues about body-camera tech are outlined in this short paper.

"From Policing to Parole: Reconfiguring American Criminal Justice": "Evidence-based means exist to make major improvements in every facet of American criminal justice. What has been lacking is the political will to use them."

CCA plurality: 11th-hour evidence disclosure insufficient to comply with Brady

David Temple may be the most thankful Texan in the state today.

This week the Texas Court of Criminal Appeals overturned the conviction of the former football coach from Katy whom a jury found guilty of killing his wife in a high-profile Harris County case. (See coverage from the Houston Chronicle, Houston Press, and KHOU.) Visiting Judge Larry Gist had found prosecutor Kelly Siegler - perhaps the Harris County DA office's most famous progeny who now stars in a Dick-Wolf-produced TV show - withheld exculpatory evidence. She failed to turn over 1,400 pages of police reports until midway during the trial, giving the defense no time to investigate or use much of the information.

At the habeas hearing, Siegler testified before Judge Gist that she had no obligation to turn over potentially exculpatory evidence if she did not herself believe it was true. That "misconception" is what convinced three members of the court to sign on to a plurality opinion by Richardson granting a new trial  (Judge Newell, who until recently worked for the Harris DA appellate division, did not participate in the case.) 

Kevin Yeary provided the fifth vote for a new trial with a rather odd and IMO pointless concurrence. He would not have found Brady violations but instead grant relief based on ineffective assistance of counsel, with the ineffectiveness in question being that they could not adequately use information from the 1,400 pages because they were handed over so late. In other words, Yeary agrees the defendant got screwed but prefers to blame defense counsel for the prosecution's delayed disclosure. It's opinions like this one that make me think Yeary is moving quickly toward the Government Always Wins faction, though, as in this case, he still has one foot planted outside that tent.. That was a ton of work to craft an opinion whose sole purpose was not to change the result but to pretend that Kelly Siegler did not improperly withhold exculpatory evidence, when clearly she did so.

The other three judges in the Government Always Wins faction - Keller, Hervey, and Keasler - dissented but did not explain why. That's become somewhat common when they lose, but IMO an unexplained dissent here doesn't pass the smell test. If you think the result was wrong, explain why. Grits' sense is that, in cases like this, they don't explain their thought process because to do so would expose (barely) hidden motivations. It's difficult to disagree with Judge Richardson's reasoning that the extraordinary delay in disclosure prevented the defendant from getting a fair trial. Even Judge Yeary agrees that defense counsel couldn't adequately make use of the police reports so late in the process.

But although these three GAW-faction judges clearly believe convictions obtained in this fashion should be upheld, explaining why and how would open them to ridicule and condemnation in the legal community. They would be justifying Brady violations that cannot be viably defended on legal grounds. Instead, it looks to me like the three GAW judges are heeding some of my father's favorite advice, "It's better to remain silent and be thought a fool than to speak up and remove all doubt." And because media coverage of the court is so sparse and poor, they pretty much always get away with this sort of one-sided pro-government gamesmanship.

Obama finally ramped up on clemency in second term, but not nearly enough

As President Obama's total sentence commutations surges past 1,000, it's worth remembering two things. First, just four years ago, his clemency record was so poor that Pete Ruckman at Pardon Power and your correspondent launched a campaign urging him to pardon deceased writer O. Henry to highlight his stinginess on pardons, which were then at near-historic lows under his presidency. Though the application was denied long ago, Ruckman is still carrying that banner!

Second, as evidenced by this graphic produced by Prof. Ruckman, the president's application of executive clemency has been puny and reticent compared to the reality of federal overincarceration:

In that light, not so much to get excited about, huh? Mark Osler, formerly a law prof at Baylor, now at the University of St. Thomas, had an op ed this week urging the President to ramp up his end-of-term clemency to historic levels. And as Pete Ruckman reminded the president as he oversaw his final turkey pardoning, it still wouldn't hurt him to pardon O. Henry.

MORE: From Ruckman on Obama's clemency legacy.

San Antonio Four declared actually innocent!

Congrats to the San Antonio Four and their attorneys on the women's exoneration and findings of actual innocence from the Texas Court of Criminal Appeals. See coverage from the SA Express-News, the majority opinion by Judge David Newell and a concurrence from Elsa Alcala. The decision clears the way for the four women to be compensated for their wrongful imprisonment.

Judges Keller and Keasler did not agree with the actual innocence claim but would have granted relief under Texas' junk science writ, while Hervey and Yeary did not participate in the decision.

Bodycams and transparency: Houston PD edition

Just got an email from the good folks at KHOU. It read in part:

In an era of smartphones and social media, body cameras have become increasingly prevalent in police departments nationwide. Our five-person investigative team, based out of Houston, is part of TEGNA and KHOU. TEGNA has a new initiative in two of its stations to take a group of journalists “off the grid” and allow them to work on a project until it’s complete. On Sunday, our team launched our first project and we are hoping you will share our investigation with the readers of Grits For Breakfast. We researched more than 60 police departments nationwide to get information on their body-camera programs. 

Here’s a bit more information:

Body cameras are touted as tools to help on both sides of the lens: for the police and the citizens. To date, nearly 4,000 departments have implemented a body-camera program. The focus of our investigation is the Houston Police Department’s $8 million body-camera program, touted as the blueprint to transparency and accountability. 

But a four-month investigation by KHOU-TV, the CBS affiliate in Houston, found that the body-camera program is falling short of its promise. In a four-part docu-series called Transparency, KHOU investigates HPD’s implementation of the program.
The major findings were:

• HPD promised to conduct monthly audits of videos to check that officers are recording when it counts. We found that one random audit was conducted in six months.

• The Harris County District Attorney’s Office is missing videos in more than 700 cases. Houston’s interim police chief did not dispute this, but said they are investigating the issue.

• HPD delivered videos in 132 cases to the DA for use in court after the cases were already closed.

• Although the vendor that provides HPD’s cameras offers a safety net that ensures that footage will not be missed (free of charge), HPD chose not to activate that function.

You can see the full investigation at bodycamtransparency.com.

On the failures of Texas' eyewitness ID reform, when innocent people plead guilty, pondering immigration policy, and other stories

Here are a few odds and ends to clear Grits' browser tabs of brief items which merit readers' attention:

Report confronts sexual assault in Texas prisons
Grits will have more on this soon, but for now here's the link to a new report from the Texas Association Against Sexual Assault and the Prison Justice League on sexual assaults in Texas prisons - one of the first in-depth looks at the issue since Texas agreed to comply with the federal Prison Rape Elimination Act. MORE: See coverage from the Houston Press and the San Antonio Current.

TX eyewitness reform didn't stop suggestive IDs, photo arrays
In a recent dissent, Judge Elsa Alcala effectively showed why and how Texas' eyewitness identification reforms have failed to stop convictions based on biased lineups, in this case where the suspect was the "sole one in the photo array matching the physical description of the shooter." See the majority opinion, which mostly relied on outdated criteria from older cases that predated modern best practices in this area.

Concerns over cell-phone location data legitimate, non-partisan

In Texas, lots of folks were concerned about privacy of cell-phone location data long before the recent presidential election, including loads of conservatives. So I hate to see the push for federal cell-phone privacy legislation cast in terms of fear of Donald Trump. Grits wasn't any more happy when it was the Obama Administration pushing to maximize government surveillance powers.

When innocent people plead guilty
Reported AP, "Last year, 68 out of 157 exonerations [nationwide] were cases in which the defendant pleaded guilty, more than any previous year. That's 43.3 percent, for those keeping score at home.

'Detached from reality' Crime and public perception
Following up on their own poll, discussed here on Grits, the Pew Research Center explored why "Voters perceptions of crime continue to conflict with reality." Gallup over the years has continuously found that voters perception of high crime is "detached from reality." At Vox, German Lopez has explored this odd and persistent phenomenon. The Brennan Center has found that headline mentions of murders in newspapers did not decline along with the volume of murders themselves. In this election we saw that misperception brazenly exploited by the President-elect, who went around claiming violent crime was at a 45 year high when the opposite was true. By the time he trotted that one out, he had told so many flat-out fabrications that the media''s fact checking seemed tired and pro forma, as do hubristic pretensions that media will now solve misconceptions they've actively created.

Okie Governor leading by example on criminal-justice reform
Read Oklahoma Governor Mary Fallin on the recent election and criminal justice reform. She's saying the sort of things while in office that Texas Gov. Rick Perry waited to embrace until after his departure. Voters in her state just overwhelmingly voted to reduce penalties for low-level drug possession from a felony to a misdemeanor. The Lone Star State should follow suit, or Oklahoma may soon supersede the Texas GOP when it comes to Right on Crime bona fides.

Pondering immigration, walls, symbols, and public opinion
Here's the problem with the Trumpian plan to deport "criminal" immigrants: After years of the Obama Administration aggressively enforcing their "Secure Communities" program - a ham-handed operation which never worked well and of which Grits was never a great fan - there aren't nearly 2-3 million of those left to deport. (Immigrants commit crimes at much lower rates than citizens. Foreign nationals account for 16 percent of Texas' population, for example, but only eight percent of arrests.)

Will "I'll do what Obama did," plus spending $10-20 billion (or whatever figure) on an American Great Wall, be enough to satisfy voters spurred to the polls by anger over Latin American immigration? Perhaps rebranding the policy as Republican will allow pols to declare victory and stop fighting, the way Texas Rs seem ready to declare victory on border security and spend the money on something else. The campaign is over now and governing requires confronting reality. Grab some popcorn and stay tuned.

In Texas, that reality includes the fact that undocumented immigrants make up more than eight percent of our active labor force. When push came to shove, while some Texas Rs have indulged in nativist rhetoric during campaigns, most have always understood and respected core interests of the business community when governing. At first blush, that seems to be the approach the president-elect will take: Talk big, wait for public discord to die down, then declare victory without really having changed anything and move on. While essentially frivolous as a border security suggestion, perhaps a "Great Wall" will serve a more important purpose as a tangible, lasting symbol. Who knows? Maybe that's what's necessary to sell Obama's immigration policy as a Republican solution that the president-elect's still angry base will accept.

On debtors prison policies as job security for government bureaucrats

Not all judges view poor defendants who can't pay fines for petty offenses as a source of "job security," but neither is the attitude uncommon, nor in the present political environment, disqualifying. The Houston Press' Meagan Flynn has the story of Houston magistrate Judge Joe Licata, In a recent case involving a woman with high Driver Responsibility surcharges:

Licata warned her that, if she didn’t pay the fines for these tickets and renew her license after paying surcharges to the Department of Public Safety, “then you’re gonna get arrested every time you get pulled over.” 

That was nothing to her, Clearey responded — because she had already become trapped in a cycle of arrests. 

“It’s nothing to me either,” Licata told her. “It’s job security.”

Tis as true as it is horrifying that he would view it through that lens.

The Texas Organizing Project has produced a video with examples of problematic statements by Licata from the bench.

Bills frame Texas' 2017 marijuana reform debate

In the wake of legalization votes last week in California and elsewhere, marijuana is bubbling up as a sleeper issue, as evidenced by the first day of bill filing at the Texas Legislature yesterday. The Texas Tribune published a brief roundup of marijuana-related legislation filed so far. Four bills were filed lessening criminal penalties in some way, shape, or fashion, and three others would authorize some version of legal medical marijuana, as is now available in the majority of states. After last week's election, more than 20 percent of Americans live in a state with legalized recreational pot.

Medical marijuana is beyond this blog's ken. But how will the 2017 debate at the Texas Legislature be framed on the question of reforming criminal laws governing pot?

In 2015, then-Rep. David Simpson's bill to "treat it like tomatoes" dominated discussions by formally proposing the most radical legalization framework possible. While more than a few legislators agreed with Simpson, filing that bill scared off the leadership and doomed more moderate proposals, which made it out of committee but never received a vote on the House floor.

This session, there's hope that could change. There are several serious proposals being made which IMO have a mathematical chance of passage in the current environment.

The most straightforward version is state Rep. Harold Dutton's HB 82, which would reduce penalties for possession of less than one ounce of pot from a Class B to a Class C misdemeanor. HB 81 by Rep. Joe Moody would create a new civil penalty to apply to low-level pot possession (Sen. Jose Rodriguez filed companion legislation). And HB 58 by Rep. James White would establish new specialty courts for diverting marijuana cases.

Of those options, folks who want full-blown legalization most prefer Rep. Moody's bill, which essentially takes pot possession out of the criminal code and formally decriminalizes it. Advocates who favor that approach argue that removing the criminal penalty absolves defendants from an array of federally mandated collateral consequences which apply to even minor drug convictions.

More conservatives, last session including the Texas Public Policy Foundation, are comfortable with Rep. Dutton's proposal to reduce penalties for low-level possession from a Class B to a Class C misdemeanor. This has the benefit of not creating some new class of civil penalty which currently doesn't exist in that form under Texas law. And politicians can still rightly insist they did not support "decriminalization," a phrase which for many has Culture War implications. (Former Governor Rick Perry has embraced "decriminalization" as a goal, but did not do so until he was on his way out of office.)

Either Moody's or Dutton's proposal would reduce jail costs from processing and housing marijuana defendants, as well as relieve county governments from the obligation to pay for lawyers when defendants can't afford one. So those bills would incur significant cost savings for county governments, which pay for those things with local property taxes. Indeed, shifting high-volume offenses from B to C misdemeanors and bail reform which would reduce pretrial detention should be embraced by less-government conservatives as a source of local tax relief.

Rep. White's HB 58 would create specialty courts for first-time marijuana offenders, imposing a waivable $100 fee on them to participate and requiring 8 hours of community service or a class. The incentive is basically to get an order of non-disclosure related to the offense. To me, this needlessly adopts a half measure when the public is already way ahead of the Lege on this topic.

In 2015, a Texas Lyceum poll found that 46 percent of Texans supported full-blown legalization of recreational marijuana, while another 28.5 percent opposed legalization but supported "decriminalization." So three quarters of the public, according to that well-regarded poll, support at least what Rep. Moody has suggested and want policies more radical than Reps Dutton or White.

The public overwhelmingly favors reform. Counties need the budget relief. Now it remains to be seen if political will can be mustered to change the law.

Why prosecutors play defense lawyer at bail hearings, and why they shouldn't

In a new paper published this month in the Hofstra Law Review, Grits contributing writer Sandra Guerra Thompson argued that prosecutors are ineffective at preserving defendants' rights at bail hearings when there's no defense lawyer there, and makes the case that "ethically barred from participating in bail hearings unless defense counsel is also provided."

As it turns out, "In about half of all local jurisdictions today, arrested individuals face a judge at a bail hearing without the assistance of counsel, and in many of those jurisdictions, prosecutors may appear on behalf of the state." In fact, "The ABA Standards for Criminal Justice: Prosecution and Defense Function apparently took the position of preferring the presence of prosecutors in all cases, even those in which a party appears without counsel. The rules assign prosecutors in those cases to protect the rights of the unrepresented accused, effectively casting the prosecutor as a surrogate defense attorney."

Guerra Thompson's article "demonstrates the various ways in which prosecutors are charged with protecting arrestees and concludes that time has proven this approach to be unworkable and ineffective in protecting the rights of defendants at bail hearings."

Her article appears at a time when litigation in Harris County has raised the question of one-sided bail hearings where prosecutors appear before judges without the defendant being represented by counsel. It'd make the process a lot cleaner if the Lege simply required courts to appoint counsel for the indigent by this stage.

When SCOTUS encourages aggressive policing

Here's the abstract to a new academic paper titled, "The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing," which goes on Grits' to-read list:

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these events are also — and much more importantly — connected by decades of Supreme Court jurisprudence. It will describe how since before the close of the Warren Court in 1969 the Supreme Court began a process of expanding police powers, restricting individual Fourth Amendment safeguards, and encouraging officers to engage in unconstitutional investigative practices. The article will proceed with a particularized focus upon the Supreme Court’s exclusionary rule and standing jurisprudence, and its discussion of Strieff will take place in this broader context. It will explain how the decline of the exclusionary rule and the attendant standing doctrine over the course of several decades has helped foster a culture of aggressive police practices. It will illuminate how the Court’s steady expansion of police investigative authority, coupled with its increasing willingness to forgive constitutional missteps by the government, have encouraged the police to engage in unconstitutional practices and to test the outer limits of acceptable police behaviors. 

When viewed in this context, Strieff is the latest in a series of Supreme Court cases that have implicitly encouraged aggressive police conduct. Strieff is a most unfortunate and perilous expansion of the attenuated circumstances doctrine. Though accurately cast as a case that encourages unconstitutional detentions by the police, a more apt description of Strieff is that it promotes physical contact with individuals by the police without just cause. In contrast to the Court’s good faith exception and attenuated circumstances cases that preceded it, Strieff breaks disturbing new ground; it creates an incentive for officers to get within close proximity of individuals, to detain them unconstitutionally, and to risk unnecessary physical confrontation. At a time when officer aggression has ignited national controversy and irritation in communities (particularly minority) from coast to coast, Strieff delivers the wrong message at the wrong time.

FWIW, SCOTUS may say police have these powers now, but state legislatures have authority to rein them in, if there is political will.

TPPF: Texas grand juries need more reform

With the pick-a-pal method for selecting grand juries now ended in the Lone Star state, the Texas Public Policy Foundation has a new report out identifying additional problems with grand juries and suggesting reforms which the 85th Texas Legislature could implement when it convenes in January to make them more fair and just.

TPPF recommended creating a right to counsel for certain defendants and witnesses appearing before grand juries, as is the case to greater and lesser extents in 26 other states. For example:

In Colorado, all witnesses have the right to counsel in the grand jury room and will be provided such counsel if they cannot afford it. Attorneys are restricted in a similar manner within the grand jury room as in New York. 

Of those defense attorneys surveyed, 80 percent in New York and 75 percent in Colorado believed their presence in the grand jury room led to fairer questioning. Seventy-six percent of New York defense attorneys and 69 percent of Colorado defense attorneys also believed that the knowledge gained by being present helped them prepare for trial or plea bargaining.  

A majority of prosecutors who were interviewed in both states believed that the practice benefits the administration of justice with one prosecutor stating it “lends an air of legitimacy.” Prosecutors interviewed also stated that defense attorneys rarely interrupt the work of the state and are generally silent observers. They were also “unified” that defense attorneys don’t slow their work.

The same two states both give defendants the right to a grand-jury transcript, which TPPF considered beneficial to the process.

Ninety-two percent of defense attorneys in both states found that the transcripts are helpful in preparing for trial or plea bargaining. The interviews showed that several attorneys agreed the transcripts were beneficial to urge clients who wanted to go to trial, but were then reminded of the finer details of the facts of the case based upon the transcripts. 

Ninety-one percent of defense attorneys in New York and 81 percent in Colorado agreed that transcripts improved the accuracy of future testimony.

TPPF also lamented that, at present, "Texas does not explicitly require prosecutors to disclose exculpatory evidence during grand jury proceedings," urging such a requirement be created.

Finally, the group recommended precluding taking cases to a grand jury multiple times unless prosecutors have discovered new, material evidence against the defendant.

These are significant and timely reforms, I'm glad to see the state's most prominent conservative think tank championing them.

Harris County prosecutor gave secret deals in exchange for false testimony

One sees shades of the Orange County snitching scandal out of California in this new story from the Harris County DA's office, reported today by the Houston Press' Meagan Flynn:

A Fort Bend County judge has upheld complaints of prosecutorial misconduct against a Harris County prosecutor who lied to a jury in a capital murder trial about whether she had struck deals with three jailhouse snitches in exchange for their testimony. 

After finding that a prison inmate's false testimony that prosecutor Elizabeth Shipley Exley knowingly allowed on the stand led to the conviction of Edward George McGregor, Judge James Shoemake has recommended McGregor receive habeas corpus relief and a new trial. 

"For a prosecutor to make secret arrangements with witnesses, not disclose them to the defense and the jury, and elicit false testimony where the witnesses deny it, I find that to be just totally deplorable," said Randy Schaffer, McGregor's attorney. "It's basically saying we have the right to present false testimony and there's not a damn thing you can do about it." 

McGregor was charged in the mid- and late-2000s with capital murders dating back to 1990 and 1994 in Fort Bend and Harris counties, respectively. Shipley Exley worked on the case in Fort Bend given it was the first case to go to trial. According to the judge's findings, because DNA evidence wasn't strong enough to convict McGregor, Shipley Exley was in charge of getting three jailhouse witnesses on the stand. They testified that they overheard McGregor confess to the killings. 

Turns out, all three witnesses received some nice perks thanks to prosecutor Shipley Exley's good word. Perhaps the most damning witness was a prison inmate named Delores Gable — because her entire story turned out to be a lie.

Go here for the rest of the story.

Reality Check: In a fact-free era, what can we agree on?

As the whole world ponders the outcome of national elections (a subject which Grits has for the most part dutifully avoided, focusing on my own Texas criminal-justice turf), the big-picture question which disturbs me far more than the temporary resident of the White House is, "How did political discussions in America become so divorced from reality?"

I don't mean reality as in, "the way I see things." I mean reality as in a baseline respect for facts and math. The Pew Charitable Trusts recently published a remarkable poll describing whether or not Americans think progress has been made on different topics during Barack Obama's presidency. Here are the topline results:

I find most of these numbers unfathomable. To take the topic most closely associated with this blog, Crime: By any mathematical measure the nation is better off than in 2008. But only 15 percent think that's true while 57 percent think crime has gotten worse. This is delusional thinking that flies in the face of reality.

Certainly that impression has been exacerbated by the president-elect's stump speech in which he's been going around the country claiming crime is the highest it's been in 45 years, when in fact the exact opposite is true. But that's relatively recent. Long before that, the public believed crime was rising when it was actually falling. I've speculated before on the reasons, but it's a persistent, frustrating phenomenon.

Similarly, 55 percent think the immigration situation is worse than in 2008. But under President Obama, the feds ramped up deportation to highest-ever levels and illegal Latin American immigration precipitously declined.

On the Economy and Jobs, the idea that things are worse now, with unemployment below 5 percent, compared to 2008 at the apex of the Great Recession when the entire global financial system was threatened, beggars belief. Where could such a perception come from? It's utterly divorced from reality.

Of the others, US "standing in the world" and "security from terrorism" are subjective assessments and so those aren't opinions which can be refuted or supported. They're just a function of people's impressions. To me, the metrics say our standing hasn't declined - our military and economic might stand unparalleled and American-generated tech is transforming the globe. And I don't feel less safe from terrorism than when President Bush was prosecuting the Iraq War, which to me was a generator of those problems more than a solution. But because there's no hard metric on which to base an opinion, Grits will let those disagreements pass on the reality-check front.

Race relations is the only area where I can understand the public's view that things have gotten worse. For those judging purely from what one sees in the media from the comfort of one's living room, I'm not surprised most white Americans might think race relations have gotten worse. My own personal view is that recent debates over race and policing merely exposed longstanding problems rather than created them. But there's no doubt race relations remain strained, and those strains are hungrily aired in the media using click-maximizing strategies that gravitate toward the nastiest, most entrenched Culture War debates.

Regardless, that's four of the seven major areas identified by Pew where, objectively, the public's views directly contradict the facts. It's not just that there's countervailing evidence, the public objectively, demonstrably thinks things are true which are false.

I'm not saying this to defend Barack Obama's record. The election is what it is and I don't care a whit about protecting (or harming) the Dems' brand. But how did we get to this place where the majority of the public simply believes big, important things which are not true? And far more important than who is in the White House, how can we change THAT? That's the part of the last year which for me has been unbelievably dispiriting.

Private prison stocks soar on election news

Private prison stocks soared upon news of Donald Trump's ascension to the presidency.

That makes sense. For starters, it's possible that Trump will reverse the DOJ's recent decision to phase out private prison contracts. And the election likely has eliminated the possibility of federal sentencing reform in the near future. Thinking more long-term, if Trump makes good on his campaign promises to implement mass deportation, private prison companies may look forward to enormous new contracts as the feds try to process 11 million people through a system designed to handle a fraction of that volume.

Who knows if that campaign promise was real; certainly it was unrealistic. But I can understand why investors would interpret the election as portending a reversal in fortune for private prison companies. They're probably right.