Treatment not incarceration, for drunks

I've written before about the need for more state drug treatment dollars, but DUI Blog reminds us that treatment for alcohol addiction also works better than incarceration to stop drunk driving.

Dog sniffs not a search; what next?

Here's the money quote from today's 6-2 U.S. Supreme Court decision that says a dog sniff at a traffic stop is not a search:

"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." (SCOTUS Blog)

That's a bunch of hoakum. All searches are looking for illegal items, so the Supreme Court majority's distinction is specious. The question should be whether the dog is a tool for conducting searches for contraband, or somehow just an extension of the officer. (As an aside, the fiction that the dog is itself an "officer" carries too much weight. Swear the hound in, then, why don't you? Place your left paw on the Bible and raise your right paw to God ...)

South Texas Law Professor Dru Stevenson, commenting at TalkLeft, offered the tired, "if-you-don't-have-anything-to-hide" response:

I don't carry drugs in my car, so dog sniffs around my parked vehicle do not pose much of a threat to me. It's hard for many of us to get passionate about protecting people's liberty to pursue illegal activities. And if none of us really have drugs in our trunks, it is even LESS likely that the police would bother expending resources on dog-sniff traffic stops.

So Professor Stevenson is alright with being searched by dogs because he thinks they won't find anything. But that doesn't mean what the dog is doing isn't a search! Dogs can now be trained to sense medical information with a "sniff," so once the government can articulate some public need for gathering that information, will that not be a search, either? His position also doesn't address the functional issue. Typically there's at most one dog per traffic unit, so traffic officers only call for the K-9 unit if the driver refuses to consent to a search. Should it be legal for an officer to make the driver wait for the K-9 unit if there is no other reason to believe they're violating the law. I don't think so, but this opinion seems to leave that common tactic wide open.

CrimProf blog has more on the precedents behind the decision, while Orin Kerr at the Volokh Conspiracy helpfully explains the court's reality-based reasoning: You see, the

"'reasonable expectation of privacy' is not the same as the expectation of privacy of a reasonable person, but rather is a term of art keyed heavily to property law. Because a person cannot have a property right in narcotics, the thinking goes (whether rightly or wrongly), interfering with his drugs does not infringe a property right and therefore does not constitute a search."

Well I'm glad we got that cleared up. Otherwise I'd have thought a reasonable expectation of privacy meant, you know, a reasonable expectation of privacy. Kerr identifies the fundamental shift in the Court's Fourth Amendment interpretation:

In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasong focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

I'm looking forward to reading the opinion (pdf) and digesting the outcome more, but this is awful news. Between this bad decision and Atwater v. Lago Vista, there may need to be state legislation introduced to restore the Fourth Amendment rights stripped away by the Supremes at traffic stops since the turn of the century. Viva the new federalism, huh?

UPDATE: New 21st Century Fourth Amendment Proposed

Question answered

I've avoided comment on Charles Graner's Abu Ghraib torture case up in Fort Hood because other blogs have done such a good job, and I had little else to add. But I wanted to make sure Grits readers saw this tidbit from the testimony:

Sgt. Joseph Darby ... testified that Spc. Graner had once showed him a digital image of a detainee chained to the wall naked, a puddle beneath his legs.

"Graner told me, 'The Christian in me knows it was wrong, but the corrections officer in me couldn't resist making a man [urinate on] himself.'

Pretty much answers this question, doesn't it?

Where is outcry on sodomy of prisoners?

This grim article in the Dallas News reminds us that not just prisoners but sometimes guards indulge in prison rape, and that the problem is growing, not declining, with reported Texas cases up 160% over four years.

I don't know why Texas, of all places, can't muster the political will to stop the sadistic sexual persecution of prisoners. Where are all the religious conservatives who are opposed to sodomy when you need them?

Howdy

Say hello to Texas Blogs.

Texas prison system loses a good one

Richard Watkins is a special guy. It's a shame he's retiring as warden of the Holliday Unit in the Texas prison system in Huntsville, but after 10 years as warden and 20 overall as a corrections employee, he deserves it. Watkins, who is Huntsville's NAACP branch president, told a reporter from the Huntsville Item he wished he'd worked himself out of a job: "I always hoped we would be able to send so many of these (prisoners) back home that we wouldn't need all these prisons," he said late last week. Watkins told the paper:

"I have a lot of great memories here," he said. "But it is the simple things that matter the most. There have been times when we have been able to help the staff out, but it's the times where we have seen changes in the behavior of some of these inmates.

"These guys are going to go back to our neighborhoods, and we want to facilitate change in their lives so they can go back better than they came in and we tried hard to facilitate that."

Charles Brown, former spokesman for TDCJ and close friend of Watkins, said the retiring warden is "one of the most giving persons I have ever met."

I wish I could tell readers the whole Texas correction system viewed its job that way, but Watkins is a standout. Enjoy your retirement, Richard. Buena suerte, amigo.

Found evidence in Houston too late for 21 dead men

Investigators have found missing evidence from 28 death penalty cases in boxes from the Houston crime lab that were mislabeled and stored. The boxes including missing evidence from about 8,000 Houston cases, total.

Twenty of the men have already been executed, one died on death row of natural causes. The new evidence could affect the cases of up to seven men still on Texas death row. The discovery raises the disturbing possibility that Texas may have executed one or more of these men without defendants' appellate counsel having an opportunity to perform DNA testing or other possibly exonerating scientific work.

Via CrimProf. For more, see ACLU's recommendations on how to fix the crime lab problem, plus Grits coverage of a Senate Criminal Justice Committee meeting on crime labs in Houston this month, and a recent discussion of why accuracy is sometimes optional in forensic science.

Judge Chapman tells Tulia tales

Judge Ron Chapman told his side of the Tulia saga this week to the Kiwanis Club of Cedar Creek Lake. Chapman was the visiting judge who declared that Tom Coleman was "simply not a credible witness under oath," and ordered new trials for the Tulia defendants.

"Are we winning the war on drugs? Hell, no," Chapman said. A bigger problem even than bad cops, he said, is the lack of funds for drug treatment programs, especially in rural counties, and an overreliance on incarceration. Here's the coverage from the Cedar Creek Monitor.

See Grits coverage of Tom Coleman's perjury trial.

Big Brother cashes in: Biometrics industry sees profit growth in surveillance camera proliferation

As the Texas Department of Public Safety and the House Defense Affairs Committee plot ways to create a statewide database of biometric facial recognition data on Texas drivers and ID card holders, the biometrics industry plots how to merge facial recogntion technology with closed circuit surveillance camera systems (CCTV) in the "next two to three years," reports Jason Tan, writing in A&S Magazine out of Tapei.

A few Grits readers have expressed to me privately they thought I was going "overboard" or "too far" to predict that surveillance cameras might be used with facial recognition data to track individuals as they went about their daily lives. But Tan, who follows the biometrics industry closely, doesn't think so. He writes:

Indeed, the revolution of the industry is underway with the participation of CCTV vendors.

“Facial recognition is an interesting technology. It was introduced along with the development of CCTVs,” commented Jison Hsu, biometric solutions division manager of PenPower Technology Ltd. It is a Taiwan-based company offering recognition technologies including handwriting, voice, facial recognition, as well as wireless communication.

“Nowadays, surveillance cameras can be everywhere. People are starting to change their mindset that although cameras do invade their privacy to a certain level, they have become a part of everyday lives for better security,” he claimed.

As surveillance cameras at the streets, buildings and public places become more prevalent, people will get used to being watched at all times. This will spur the growth of facial recognition solutions as people are more at ease with them.

“The combination of facial recognition with CCTVs will definitely be the future trend,” Hsu stated.

Once surveillance cameras are in place (I'm talking to you, Houston!), biometric facial recognition systems can be added on later, or they will be able to soon.

Cognitec (a German biometrics firm) seconded, adding that facial recognition can be integrated in existing video surveillance application and supports security officers with hint about suspect persons that are previously enrolled. “This is the most challenging face recognition technology application and still at the very beginning,” an official said. ...

[Surveillance camera system] makers encounter numerous obstacles when exploring the market. The issues to be resolved are the existing problems of CCTVs: hardware, data storage, compression technologies, transmission speed and picture-capturing under various lighting conditions. To cite an example, CCTV players have been working hard to capture images under extremely dim lighting environment in recent two years.

However, facial recognition will be a valuable add-on feature to CCTVs. It is an extra intelligent function that says the system will be able to capture human faces and even identify the faces, he added.

Furthermore, CCTV solutions will become more powerful with the integration of facial biometrics. For instance, it will stop recording when no human are present within the cameras’ viewing areas, and will record at a slower speed simultaneously, thus cutting down data storage in return.

To his understanding, not every CCTV vendor has jumped into the biometric rush. They might have sensed the trend, and started to treat it as a long-term investment and do not expect fast adoption.

“But facial recognition functionality will set them apart from others who do not have this intelligence,” Hsu cautioned, advising CCTV and biometric-solution providers to form synergies to complement each other for the research and development.

Tan writes that facial recognition technology appeals to government users for mass security projects because it's the only biometric data that the individual does not have to give consent in order to access the information.

Compared to other forms of biometric applications such as fingerprint, iris recognition, or palm recognition, facial recognition is the only one that requires no contact with sensors at all.

The problem is, even though DPS and certain legislators are gung ho to install these facial recognition systems, they don't really work yet. Tan writes,

However, “biometric-based recognition technologies inevitably have certain limitations,” Hsu noted. Compared to fingerprint--its more established biometric counterpart, the facial technology still has some distance to catch up with.

“The first applications for tracing wanted faces were unfortunately not very successful to this date. But the input from an automatic facial recognition system is always a helpful support for any kind of video surveillance system as facial technology offers intelligent tracking,” added Kuip.

Currently there is a great interest from airports in the use of facial recognition for both access control and video surveillance. One example of a situation in which it would be useful is passenger recognition at the moment of exiting an airplane. These passengers would then be traced again when appearing at the airport customs a while later.

However, the technology is not reliable enough yet for such applications at the moment.

All of which brings Texas back to the question: is facial recognition technology really the best way to spend the $22.5 million in the asset forfeiture fund?

Limited government my ass

The Dallas News says 3,000 bills will be filed at the Texas Legislature before the March 11 bill filing deadline. The Texas Legislature meets for 140 days every two years.

Off topic amusement

I'm a sucker for this kind of stuff. This is one of 21 life-sized murals of saints going up in a Hindu temple in Irving. Check out the article and the rest of the pictures from the Dallas Morning News.

Vallabhacharya
by Mrugank Joshi

Houston Chronicle remembers Martin Elfant

The Houston Chronicle had a nice obituary for long-time ACLU member Martin Elfant. My condolences to his son Bruce, a Travis County Constable, and Martin's family and friends. In other sad news, memorial services for Texas Inmate Family Association founder Stuart DeLuca were held yesterday.

Martin Elfant
via the Houston Chronicle

Enforcing transparency at the district clerk

Texas House Criminal Jurisprudence Committee Chairman Terry Keel has an excellent idea: Fines for counties that don't make search warrant affidavits public.

I'd reported when I returned from Palestine, TX, in October that the district clerk in Anderson County refused to give me copies of the search warrant affidavits involving the cases of 72 people arrested in a Tulia-style drug task force sting. Similarly, Dave Mann of the Texas Observer wrote that the district clerk and District Attorney Doug Lowe "wouldn't release copies of the search warrants executed in seizing evidence."

Chairman Keel has filed House Bill 47 that would fine a county $1,000 each time they refused to release a search warrant affidavit. That would really have helped in Palestine. I understand at least four searches were conducted as part of the 72 person sweep, likely more. Anderson County has already turned me down once, and Dave Mann twice, so that's a minimum of $12,000 in fines the DA would have racked up.

Here's my only concern. Once a DA like Mr. Lowe has ordered the district clerk not to release the affidavits (I was told in Palestine they couldn't give them to me without his permission, which I could not obtain), the fine will be a fait accompli, and there will be no further incentive for the county to turn the records over promptly without a court order. Counties would have greater incentive to release that information immediately if the fines were levied at $1,000 per day. That would send the message that they can't withhold the information under any circumstances, and avoid DAs making cost-benefit analyses about whether it's worth $1,000 to improperly conceal information.

For more on the Palestine case, see Dave Mann's Texas Observer article, The Usual Suspects.

Connecting the dots

Let me get this straight. The Texas Department of Public Safety has identified $22.5 million in asset forfeiture funds that it says Texas should use for a new database of biometric facial recognition data on drivers. But the Texas House of Representatives already resoundingly rejected that idea in a 111-26 vote in 2003. So why not spend the $22.5 million to expand drug courts, which more or less everybody thinks is a good idea?

Ann thinks that'd be a good solution.

Does Not Compute

Two anomalous reports: Taser to increase power of stun guns, and a large settlement in an Indiana Taser death case. The jailer in case is being charged with serveral criminal counts including battery with a "deadly weapon."

The devices were in the news in Texas after several deaths and examples of improper use. Austin PD, in particular, appears to overuse the devices. The Houston City Council recently agreed to purchase 3,700 Tasers for their officers.

So if Tasers already are deadly weapons, and the company plans to double the length of time the electric charge is delivered, at what point does the non-lethal label just fly out the window? Taser's investors already have sued the company because Taser allegedly misled the public about the safety of its product. Can we trust this new product is safe?

Via TalkLeft and Kemplog

'It's a nitpicky case'

Thanks to Kuff for sharing this Houston Press article by Scott Nowell on the arrest of Houston prison rights activist Frank Dewey. His case highlights the absurd dilemmas facing homeless people obligated to comply with Texas' sex offender registration laws. In a lot of cases, the laws are so onerous that full-blown compliance isn't a real option. Nobody thinks Dewey was any risk to the public whatsoever:

"He wasn't trying to hide -- we knew where to find him," says [Precinct 6 Constable] Trevino. "It's a nitpicky case, but we don't have a choice. It's not up to us to make a judgment call."

Is it okay to make completely unworkable laws, then penalize offenders for not properly complying? Is it more okay if the offenders in question are folks we're not supposed to like very much? Or has the web of restrictions on sex offenders now reached the point of absurdity?

"It's the very essence of overbroad legislation," says prosecutor Charles Thompson. "There are a bunch of different ways in that code you can fail to register as a sex offender. It's a very technical set of regulations."

At a minimum, surely, the law should change to acknowledge special circumstances of the indigent, especially since the law supplies a long list of various jobs in which registered sex offenders cannot work. As Dewey's lawyer, Sean Buckley, pointed out:

"The problem is that he remains a homeless person without any resources," says Buckley. "You can't just tell a guy not to be homeless."

What deterrent?

In light of Texas' two executions scheduled next week, here' s an interesting fact-bite: even though Texas executes more murderers than the next half dozen states combined, Texas' murder rate went up 8.6 % statewide from 2002 to 2003 alone. Overall, violent crime declined slightly over that period, according to the new Texas correctional population projections (pdf) by the Legislative Budget Board that I'm just starting to go through, but not much.

That's consistent with other information I've seen. Ann cites stats from the Texas Department of Criminal Justice, the agency that operates Texas prisons: "Texas' incarceration rate has been 51% higher than the national average, but in spite of that the crime rate has been 24% higher than the national average." Meanwhile, the prisons are bursting at the seams, and will be officially overcrowded after March. Texas is on a path to incarcerate nearly 15,000 more people each year by 2010, if current trends continue, said LBB. About 77,000 new inmates entered Texas prisons last year alone, most for non-violent offenses.

All this supposedly in an effort to keep us safe. But given the evidence one must ask, where's the deterrent?

Cool

Livebloggers from Ex Post and the Blakely Blog are writing up the Columbia University conference on state criminal sentencing issues. A mitzvah for those of us who can't afford conference fees or New York hotel rates. Via Doc Berman at Sentencing Law and Policy.

TN chief terminated for failure to cover up task force theft?

Was the chief of police in Bradford, Tennessee fired for failing to cover up a drug task force officer's misdeeds?

1. Task force officer steals radio from impounded car.
2. Mayor tells chief it should be handled as an internal matter.
   
3. Police chief lets local sheriff investigate independently.
4. Officer is forced to resign to avoid prosecution.
5. Mayor fires chief for not handling the matter internally.

Sounds like it to me.

Booming Biometric Budgets Bane of DPS Boondoggle

If the Texas Department of Public Safety wants to play Big Brother, they have to figure out how to pay for it. The Texas Legislative Budget Board Staff Performance Review (go here to view the massive PDF file) evaluates funding options for the Texas Department of Public Safety push to add biometric identifiers to the information collected by DPS from drivers license and ID card applicants.

The Department of Public Safety has requested funding in fiscal years 2006 and 2007 for five homeland security related Exceptional Items ... an Emergency Vehicle Operations Course, an In-Car Computer Project, the Criminal Intelligence Bureau's Texas Security Alert and Analysis Center, a Driver's License Reengineering Project, and a Driver's License Image Verification System.

That last item, the "image verification system," is the euphemism for the drivers license biometrics proposal that went down in flames on a 111-26 vote during the 78th Texas Legislature. (I need to look into the specifics of this "Texas Security Alert and Analysis Center," too.) In 2003, DPS proposed that Texas drivers and ID card holders should be required to give up facial recognition data plus all ten fingerprints. LBB didn't mention the political controversy around the biometrics proposal, but merely discussed possible funding sources to pay for it.

DPS proposes spending $65.7 million total on these items -- $43.2 million from State Highway Fund 6, and $22.5 million in asset forfeiture funds the feds share from drug cases.

That said, LBB doesn't seem to envision DPS getting money for these "exceptional items" through the next Texas budget. Since 9/11, Texas' policy has been to pass through as much federal homeland security funding as possible to local government, but to fund DPS' proposals, that would probably have to change:

The state may retain up to 20 percent of National Homeland Security Grants for States and Urban Area Security Initiative Grants for its own purposes, as well as 3 percent for administration, for a total estimated amount of $54.6 million for the 2006-07 biennium. In fiscal year 2004, the Texas Engineering Extension Service distributed 98 percent of all National Homeland Security Grants for States to local jurisdictions.

The Department of Public Safety and the Texas Engineering Extension Service should examine whether homeland security related Exceptional Item requests for the 2006-07 biennium could be funded with Federal Funds.

Great Britain right now is debating the substance of how their own biometric ID system will work when they start putting that data on their proposed national ID card. Spy Blog has a fine post that shows how the ambitions of governement data collectors would moot any sensible budgetary limits. Vendor driven proposals are massively driving up costs. A commenter adds that costs for such a system might grow exponentially once it's in place, plus require massive ongoing investment to keep the databases useful and up to date. Bottom line, vendors' lobbyists, not security needs, are driving the train: "Thanks to the extra technical complexity which the Government is piling onto the scheme, Information Technology hardware, software and consultancy suppliers could potentially make a fortune."

Like Texas, the Brits hope to include not just facial recognition technology but all ten fingerprints and a variety of other identifying information in their smart card system. But the government's greed for so much data could doom the project. Here's the functional problem identified by Spy Blog:

You simply cannot fit

• The digitised image of a "head and shoulders" photograph, to comply with the ICAO machine readable travel document standards
  
• The facial recognition reference point "minutiae" maps of such a "head and shoulders" photograph,
  
• The digitised fingerprint reference point "minutiae" maps of 10 fingers/thumbs
  
• The two iris scan codes
  
• The digitised image of a pen and ink handwritten signature
  
• The speed/pressure reference point "minutiae" maps of digtal pressure pad and stylus signature
  
• Any necessary smart card internal cryptographic checksums, digital signatures, certificate revocation lists etc.

into the standard 16Kb or 32Kb of tamper resistant memory of standard Smart Cards which are on the market from the likes of the market leaders such as Schlumberger/Ataxo or GEMPlus or Giesecke and Devrient (none of which are British companies).

It may not even be possible to do this with 64Kb or 128Kb Smart Cards.

Spy Blog predicts that the insistence on including so much data will create the same workability problems that have plagued the European Union biometric visas, which last month were deemed "not technically feasible."

I'll guarantee DPS hasn't worked out such problems yet -- they have to revamp their entire drivers license system to make it work, and haven't even started -- so the cost figures cited by LBB are almost certainly low-balled.

See more Grits coverage of biometrics issues here.

'A state sponsored suicide'

Carrie says James Porter's execution earlier this month was a "state-sponsored suicide." He'd dropped all his appeals and asked to be executed. I think she's right.

Texas plans two more executions next week. Troy Kunkle is scheduled to be executed on Tuesday, January 25, while George Jones is scheduled to die on Thursday the 27th. Here's the whole grim schedule through March. The National Coalition to Abolish the Death Penalty presently has e-action alerts regarding both these men's cases here.

The end of strict construction?

I must admit I've always been a bit befuddled by critiques of liberal activist judges. After all, I live in Texas. Most of my adult life, a good number of our judges have looked like Sharon Keller, Priscilla Owen and Alberto Gonzalez. The typical approach for appellate judges in this state is to choose the preferred policy outcome ahead of time - no liability for insurance companies, execute retarded people -- then manufacture some cockamamy argument to support it, to hell with the facts.

At least we're not alone. The Legal Reader quotes a gem of an Indiana Supreme Court opinion showing that, whether the liberal activist label was ever justified, today it's conservative judicial activism that's in vogue. Here's the court's ridiculous argument for refusing to allow recognition of gay marriages legally performed in other states:

when same-sex couples have sex, it can't cause accidental pregnancies. Indeed, when a same-sex couple wants to have a child, they have to make a concerted effort to have one, such as through adoption, assisted reproductive technology, or a surrogate. By making such a concerted effort, these couples have already demonstrated a strong commitment to having and raising children, so there is no need for the state's marriage laws to provide any extra encouragement.

The blogger's one-liner summary of the opinion's logic is spot on:

Indiana affords the benefits of marriage to heterosexuals because of their tendency to accidentally produce unwanted children, but denies these benefits to gays and lesbians because they tend to have children only when they really, really want them.

Read the opinion (pdf) for yourself, if you like. Honest, serious people, arguing in good faith, can disagree over whether gay people should be allowed to marry. Personally, I think it's a civil rights question. But if judges are going to manufacture such flimsy, spurious so-called legal arguments to support their positions, let's at least not pretend it's strict construction.

UPDATE: Indiana's Kemplog has more.

Probation includes jail time for police shooter

After a jury recommended probation, Houston District Judge Mary Lou Keel ordered that the officer convicted this week of shooting an unarmed 14-year old in the head spend 60 days in jail, in addition to nearly 10 years probation. Via TalkLeft.

Drug task forces on the ropes

Drug task forces are scaling back staff or looking for new money all over the country in the wake of cuts to the federal "Byrne grant" program.

The Texas House Criminal Jurisprudence Committee recently recommended getting rid of Texas' entire drug task force system.

Booker leeway used to extend sentences in Texas

Doc Berman thinks Texas federal District Judge Randy Crane likely overstepped his authority when he used his new discretion to treat federal sentencing guidelines optionally to extend the sentences of three officials convicted of taking bribes. In most instances, judges tend to use the new discretion to sentence offenders less harshly. Berman and others believe that constitutional due process restrictions prevent the judge from using the new ruling that way.

If you're an attorney wondering how the Booker case will affect your clients in federal court (it doesn't affect Texas state cases), Berman's Sentencing Law and Policy Blog is borderline obsessed with the subject. Just start at the top and keep scrolling.

UPDATE: CrimProf blog points to this ABA web conferencing opportunity for attorneys to learn more about Booker. Perhaps Judge Crane might want to log on.

Coleman received restorative justice

Rev. Charles Kiker of Tulia Friends of Justice left these comments in the post below regarding the outcome of Tom Coleman's perjury trial. The Amarillo Globe News claimed that any more punishment than probation would have been a "miscarriage of justice." I wanted to make sure Grits readers saw what he has to say.

I am no fan, nor defender, of Tom Coleman. I don't feel jail time would have been a "miscarriage of justice," but I do feel justice was served. Tom got a stiff sentence, a 7 year prison sentence suspended for 10 years--no alcohol, no guns, can't leave Ellis County without his probation officer's permission, a $7,500 restitution payment to Swisher County; he can never again work as a police officer. Now that one's good for Tom, and good for all of us!

Jail time for Tom would have been revenge for the jail time the Tulia defendants served. Our justice system really shouldn't be about revenge, but it is. A nicer word is retribution, but it means about the same thing.

Our justice system is based on retributive justice. Biblical justice is restorative justice, making things right. Tom's sentence approached restorative justice. In retributive justice, the model our system is based on, Tom should have served time.

Tom's victims received a miscarriage of retributive justice. Tom got restorative justice in a retributive system. And that ain't right!

(Not) frequently (enough) asked questions

Ann's FAQ at Solutions for Texas on the state's prison options is a must read for anyone thinking about Texas' prison overpopulation crisis. She's provided answers to all the right questions about the justice system:

• Which sentencing policies reduce crime the most?
• Is crime down because more people are in prison?
• Too many felonies - too many felons
• How much does Texas spend on treatment and diversion programs that work?
• What is probation or "community supervision"?
• Is probation easy? How long are probation terms?
• What barriers do felons have to face in Texas?
• What is the effect of incarceration on children?
• Can Texas change?

Far from the usual conventional wisdom found in so-called FAQs, Ann has delved into the core concerns surrounding Texas' prison overpopulation crisis, bringing together a tremendous amount of research and insider background about the system that's not available anywhere else on the web.

The section of the site entitled "Library" also is brimming with useful information. Check it out.

The Lord despiseth not his prisoners

For the Lord heareth the poor and despiseth not his prisoners.
Psalm 69:33

Huntsville, Texas is home to the state's main prison facility. So it's fitting that this article appeared in the Huntsville Item yesterday about Restorative Justice Ministries, Texas' largest prison ministries network.

"The old 'tough, Texas Justice,' it doesn't work," said Bill Kleiber, administrative assistant for Restorative Justice Ministries. "We favor smart justice. What we do here is we help victims of crime, ex-offenders, offenders and corrections officers, pretty much anyone who is touched by incarceration."

That's a bold message to take into a small town filled with prison guards, and an especially important messenger. Not a lot of folks know about the fine, mostly low-key work of Restorative Justice Ministries, but this article gives a taste:

Restorative Justice Ministries was started 12 years ago by its current director, Emmett Solomon.

"I've been called to this ministry my whole life," said Solomon, former head chaplain for the state's prison system. "We initially were advocating prison ministry. Now we are not so much about prison ministry as we are about after-care ministry."

Emmett feels incarceration is being overused in Texas and it is having detrimental results for both families and society.

"Every time that a prisoner gets locked up a family goes into crisis," Solomon said. "As a result, we are unraveling the fabric of our society at the lowest levels, and we are creating what could be a permanent underclass.

Our system is aiding in that process."

Emmett's a conservative religious Republican, and there are a lot of issues on which he and I don't see eye to eye. But his concern for "family values" is more than a campaign slogan, and as a prison chaplain, he's witnessed the real impact of incarceration on families. He deserves a lot of credit for following his heart on these issues, even when it led him to question the tough on crime orthodoxy.

Emmett's aide, Bill Kleiber, is worried about how prison degrades inmates' ability to exercise personal responsibility. He sees RJM as a vehicle for correcting that.

"We are mentally damaged when we come out of prison. We are not allowed to think. We are not allowed to make any kind of decisions. The only decision I got to make was maybe what book I was going to read. Then they dump us out here with no preparation and say, 'Here's the free world, man! Here's some money,' and I don't even know how to handle this money," he said. "A lot of people ask us, 'Why are you wasting your time with those guys? They're only gonna go back in a couple of months.' But given half a chance, over 70 percent of ex-offenders never go back to prison."

RJM connects hundreds of church-based prison ministries statewide. Very few lay people have the first-hand knowledge of incarceration issues in Texas that the religious prison ministries do. I hope, as the 79th Legislature progresses, our elected leaders will look to them for solutions to the overincarceration question.

Accuracy optional in forensic science?

The Washington state legislature says scientific readings taken by faulty equipment can be used to convict on DWI charges.

With that type of convict-at-any-cost mindset among the tough-enforcement crowd, it's no wonder we see the problems that surfaced with Texas crime labs, or that there's a national crisis in the reliability of forensic science.

Forensic science isn't "objective" science, it's goal oriented. Police scientists tend to find the answers prosecutors want because, as a Dallas scientist testified to the Senate Criminal Justice Committee in Houston, it's prosecutors who tell the scientists what avenues of inquiry are "probative" -- in other words, prosecutors tell the scientists what questions to ask, not defense attorneys. If defense counsel want to ask their own scientific questions - for example, to perform tests that might exclude the defendant as a suspect - the defendant must pay for outside lab testing, or convince a reluctant judge to release the funds.

Forensic science is contextual, not neutral, and outside the classroom it's always employed with a purpose. In court, innocent people get roped in by bad science largely because the purpose of the science is to convict, not to exonerate. In Washington state, now they've made that behind-the-scenes truism official.

Hat tip to the DUI blog for a great post on this, by the way, which earns Mr. Taylor a place in the "Often checked" column, since he is.

Juries love police

The Houston officer convicted of shooting an unarmed 14-year old in the head was given probation. Sounds familiar. Probably no civil recourse for the family, either, after Haugen v. Brousseau. I guess Crime & Federalism is right -- juries do love police.

Amarillo paper: More than probation for Coleman unjust

The Amarillo Globe News said it would have been a "miscarriage of justice" to give Tom Coleman a harsher sentence than probation for his perjury conviction. The Panhandle Truth Squad parsed the garbled prose and justly lashed the "newsroom ghosts" for issuing the provocation while hiding behind the veil of anonymity.

Texas prisons full by March!

The Houston Chronicle reports that Texas prisons will be full by March, requiring the state to reduce the population or contract for new beds.

Governor Perry abolished the agency that used to make such projections, and the new one charged with that task, the Legislative Budget Board, got it wrong, predicting prisons wouldn't reach capacity until October.

The article seems to push the idea of building a new prison as the only option, and speculated that Governor Perry may call for building more facilities in his January 26 State of the State speech. But that's financially unrealistic, and bad public policy. Grits has covered the topic extensively, see

• Harris County driving incarceration train
• Senate Committee: Drug courts work
• Texas Legislature does 'enhancements'
• 'We could pay for a lot of children's health insurance'
• 99 is not enough?
• Bad Solutions: List of bills increasing prison and jail time
• Prison budget smoke and mirrors

The website Solutions for Texas is entirely devoted to providing information on this subject.

For meth-head cop, a family affair

The Nacogdoches Sentinel reported last month that a former Houston PD homicide investigator, Norman Marriott, 54, was busted cooking meth in Angelina County in deep East Texas. The article does not say when Marriott worked for HPD. It was allegedly a family affair, with his wife and adult daugher helping cook the meth while his 7-year old grandson slept in the next room. I wonder if FX wants to do a reality show about homicide detectives doing time?

He could be a star

As FX prepares to produce a reality TV show where a prosecutor spends time in jail, Tres Chicas blogs more about Texas' most recent nominee for the starring role -- meth-head Panhandle prosecutor Rick Roach.

UPDATE: See also Panhandle Truth Squad

NUTHER UPDATE (1-20): Tres Chicas has more.

Here's something you don't see very often

A Houston police officer has been convicted of negligent homicide for shooting an unarmed 14-year old boy in the head. Sentencing comes today, and Houston community leaders are waiting to find out whether the officer gets probation or prison time. Either way, it's rare for an indictment to occur in such a tragic case, much less a conviction. LULAC's Johnny Mata's comments were spot on: "There should be no jubilation in our community when an officer is convicted in such a horrific incident. There should just be satisfaction that justice has been served."

Red light cameras an unproven cash cow

In the wake of the New York Times' focus on the contribution of "red light cameras" to causing rear-end accidents, the Houston Chronicle looks at the studies pro and con on the question of red light cameras and finds them all wanting.

The article mentions one key strategy for preventing collisions at intersections -- lengthening the duration of yellow lights -- but ignores even better methods, like installing traffic circles at dangerous intersections, or installing lights that visibly countdown with a digital counter on greens and yellows. The former solution makes perpendicular collisions impossible, while the latter gives drivers literally split-second information about when the yellow turns to red. Eric Skrum of the National Motorists Association said,

communities that install red-light cameras rather than lengthening yellow lights or making other engineering changes are more interested in increasing their cash flow than reducing accidents.

Typically, vendors install and operate the cameras for a percentage of ticket revenue, meaning communities incur no start-up or maintenance costs for systems that can generate millions of dollars a year.

From Mayor White's rhetoric, it does indeed seem to be all about the money. The Texas Legislature probably won't let Houston go through with its plan, just like they turned down the idea in 2003. At least the debate is starting to flesh out other possible solutions. Grits has previously commented on privacy concerns with government surveillance cameras.

Tom Coleman Perjury Trial Archives

Here are Grits guest blogger Rev. Alan Bean's complete blog posts from the Tom Coleman perjury trial in Lubbock

1-9 Coleman trial already has pro-wrestling feel

1-10 Lesson from Tulia: Treatment not Incarceration

1-11 John Read's Boot Camp

1-12 A two-bit crime in a half-bit town

1-13 Special Prosecutor: Sheriff Stewart Needs a Lawyer

1-14 Coleman's defense continues: the fight gets personal

1-17 Reflections: Preachers, farmers and Yankee lawyers fight system that doesn't work

More:

• Alan covered Coleman's indictment for the Texas Observer, 4-9-04.
• Here's the Texas Observer piece by Nate Blakeslee that first broke the story.

See also from Grits:

• 12-16 TX House Committee: End Drug Task Force System
• 1-15 Federal judge: All counties liable for Tulia-style screwups
• 12-10 Byrne task forces not just a Texas problem
  

Photo via Texas Observer

Criminal defense attorneys: Take note

Via CrimLaw, I'll bet there are places where this would work in Texas. If anybody knows of a case anywhere where a lawyer pulled off such an argument in a public courtroom, please let me know.

MLK in court

CrimProf blog remembers MLK in court.

Reflections from Tulia: Preachers, farmers and Yankee lawyers fight system that doesn't work

This is Rev. Alan Bean's final installment guest blogging from the Tom Coleman perjury trial. (Newsclips from the verdict are accumulated here.) In addition, Rev. Bean explores some history of Friends of Justice's efforts on behalf of Tulia defendants, including the little-known story of why Judge Ed Self recused himself from the Tulia case at a pivotal moment, and what effect that had on the outcome. See his previous articles here. Many thanks to Alan for doing Grits readers this favor; you did a great job blogging the trial.

On Friday, January 14th, 2005, Tom Coleman was convicted of lying about when he first learned that Cochran County officials had indicted him for stealing gas. The jury acquitted the ex-cop on charges of lying about having stolen the gas. The charge was well supported by the facts but sloppy gas logs and weak eyewitness testimony provided a few shreds of reasonable doubt.

John Read and Kirk Lechtenberger didn't come to Lubbock to defend Tom Coleman; they came to undermine the integrity of the "writ hearings" that had placed their client in legal jeopardy. They argued that the state's case against Coleman was a continuation of a "smear campaign," instituted by "lawyers from the East coast" against Tom Coleman. They asserted that attorney John Nation had passively allowed the undercover officer to be mauled by Yankee lawyer Mitch Zamoff.

Coleman's attorneys portrayed him as a good cop who made good cases. Tom's mangled syntax shows that he isn't too bright, they admitted and perhaps Tom had a few more skeleton's in the closet than your average sinner, but that didn't stop him from buying dope from Tulia drug dealers. Coleman was on trial because a slick Yankee had badgered a simple man into unfortunate misstatements.

John Nation and Kurt Lechtenberger were particularly offended that, having failed to defend Mr. Coleman in Tulia, Dallas attorney John Nation was now trying to send a good cop to jail.

And why, they asked, was Yankee lawyer Jennifer Klar in the courtroom? After digging up dirt on Coleman for the defense team at the writ hearings of 2003, Klar was now passing damning information to Mr. Nation in a Lubbock courtroom.

These arguments were laid out with particular clarity during the sentencing phase of Tom Coleman's perjury trial. "These are drug dealers-users of drugs in Tulia, Texas," John Read told the jury. "You never heard anyone say that these people are innocent of selling drugs." The people of Tulia and their fine Sheriff have been unfairly accused, Read insisted, and the time had come to set the record straight. Calling the evidentiary hearings "a black spot on the system," Read suggested it was time for the good people of Tulia to get on with their lives.

Special prosecutor Rod Hobson met these arguments head on. "Thank God for Yankee lawyers," he responded, without them the truth in Tulia might never have been revealed.

John Read and his colleagues were beaming during the photo op and news conference that followed the trial. Rod Hobson was subdued. Asked if the assault on the 2003 proceeding bothered him Hobson replied, "No, that's what they had to do. They didn't have a chance on the facts."

The Coleman operation has always been hard to defend but for a long time it didn't matter. So long as Judge Ed Self was presiding over the process inconvenient questions were simply ruled out of order. Prosecutor Terry McEachern wasn't too concerned when he learned the Texas Court of Criminal Appeals had called for further fact finding. Judge Self assured McEachern that the matter could be dealt with outside the courtroom. So what if a few Yankee lawyers submit briefs laying out their arguments? Ed Self would toss their complaints in the trash can and tell the appeals court that all was well with the Swisher County Courthouse.

But then Plainview attorney Eric Willard felt moved to write a letter to the Tulia Herald. Willard was trying to unseat Ed Self in the 2002 election and feared that Tulia's support for the drug sting might be hurting him politically. There were problems with the Coleman drug sting, the Plainview attorney told Herald readers, but the good people of Swisher County weren't to blame.

Angie Stewart Cox, the loyal daughter of Sheriff Larry Stewart, immediately countered Willard's attempt to distinguish between good jurors and bad public officials. If Eric Willard was such a faithful friend of Swisher County, she asked, why had he accepted a large campaign contribution from the infamous Alan Bean?

For over two years I had been denouncing everyone associated with the Tulia sting. When Eric Willard and his friend David Brito started publishing an independent paper called The Observer of West Texas I had the perfect cudgel for smacking Larry Stewart, McEachern, Self and the task force boys in Amarillo upside the head. Willard and Brito despised Judge Self and gleefully published every bit of scurrilous prose I sent their way. My father-in-law Charles Kiker helped the effort by sending a steady stream of letters and op-ed pieces to the Tulia and Amarillo newspapers.

While Ed Self and company were fuming over this verbal fusillade, Swisher County farmer and amateur lawyer Gary Gardner was filing ethics complaints and perjury charges against the principal actors in the Tulia fiasco. No one seemed interest in filing writs of habeas corpus on behalf defendants like Joe Welton Moore, so Gardner decided to file pro se writs on their behalf. He would stay up all night scheming, poring over his well thumbed edition of Blacks Law Dictionary and coming up with reasons why Joe Moore had been wrongfully convicted. When morning gilded the skies Gary would send me his latest thoughts and I would work with them until Gary Gardner the writer sounded like Gary Gardner the talker. Nobody talks as good as a Texan and no one talks Texan as good as Gardner.

When Judge Self filed a baseless ethics complaint against pro bono attorney Jack Johnson, Gary and I helped Jack frame a response, then helped Jack file a counter complaint against Mr. Self. In the interest of full disclosure I published an article in the Observer of West Texas in which I compared our Jack Johnson to the black boxer bearing the same name who was hounded out of the country for the crime of knocking out white opponents.

There was a method to all this madness. Despite all the perjury charges, writs and ethics complaints we had filed, legal amateurs generally make little headway in the justice system. When Vanita Gupta and the Legal Defense Fund of the NAACP lined up Yankee lawyers to take over the writ writing process we sang hymns of thanksgiving and joyfully stepped aside. Even with $600-an-hour attorneys in the fight we faced an uphill battle. With Ed Self firmly in control of the legal process it would be desperately difficult to prove that laws had been broken in the Swisher County courtroom.

But if the perpetrators of the Coleman sting controlled the legal process the court of public opinion was controlled by Gary Gardner, Alan Bean and Charles Kiker. From the moment the Tulia drug sting hit the pages of The New York Times Swisher County attorneys placed an informal gag order on McEachern, Stewart and Self. It was their outrageous fortune to absorb our slings and arrows, but so long as they maintained a stoic silence they had little to fear from us. The sticks and stones that break your bones were barred from the Swisher County courtroom.

Sheriff Larry Stewart doesn't drink, doesn't smoke and doesn't chase women. A faithful deacon down at Tulia's Campbellite Church, Larry leads the singing, serves communion and even teaches Sunday School. Stewart can be found wherever men in cowboy hats and "Tulia Cattle Auction" caps meet to mumble over their coffee. Larry joined the drug war because his constituents asked him to and they have supported him every arduous step of the way.

When Sheriff Stewart performed his ostrich act ("I don't know, I can't remember, I really couldn't say") the good people of Tulia followed suit. The only things folks in Swisher County knew about Tom Coleman was that he had "walked the walk and talked the talk" in demon-haunted places where angels feared to tread. When Sheriff Stewart's supporters launched a letter-writing campaign in the fall of 2000 they simply gave Kiker Gardner and Bean (locally known as "the KGB") more ammunition to fire back at them.

When it comes to the subject of the Coleman operation Angie Stewart Cox is as proudly and studiously ignorant as anybody in Tulia. If the saintly Larry Stewart was standing by his man, Angie and every other right-thinking resident, was standing by her daddy.

"Any attack on the undercover investigation, the officers involved, and subsequent trials and convictions" Angie told the Tulia Herald should be considered "an attack on our entire community." The Tulia story was just a game "to the media, special interest groups, and their political pawns," but "to those of us who live here, it is our future." Angie intended to "vote for a candidate who demonstrates fairness, honesty, and integrity."

When Angie Stewart Cox's philippic hit the Tulia Herald I sensed an opportunity. "Angie Cox is right," I replied, "a vote for Ed Self is a vote for Tom Coleman."

If the Coleman operation was a glorious sting without spot or wrinkle, there was little to fear from a diligent weighing of the facts. "If Vanita Gupta of the Legal Defense Fund in New York has her way," I wrote, "the Swisher County courthouse will soon be the site of evidentiary hearing in which everyone involved in the Coleman sting will face probing questions from the sharpest legal minds in New York and Washington, DC."

I concluded with the words of Robert Frost:

But so with all, from babes that play
At hide-and-seek to God afar,
So all who hide too well away
Must speak and tell us who they are.

Gary Gardner added his voice to the lively debate. "I apologize, Angie," he wrote, "but I cannot and will not vote for Republican Ed Self, for I have witnessed Ed allow a man named Tom Coleman lie under oath in Ed's courtroom, and Ed accepted it while personally knowing the testimony was a lie even as it was given."

Incensed, Judge Ed Self fired off an angry letter defending his role in the Coleman affair. The only evidence he had kept out of the courtroom was "neither relevant nor admissible according to the Rules of Evidence." In fact, he had sent all the evidence in question to the Court of Appeals and they fully concurred with his conclusions.

He then launched into the kind of ad hominem assault we had been trying to evoke for years. "Bean has not sent any of his writing to me;" he said, and "Bean has not filed any written document with the Court." Since Gary Gardner had handled the legal strategy this was technically true. Furthermore, "neither Bean nor Gardner were parties to the cases, are not parties to the cases, and never will be parties to the cases."

Two weeks later Judge Self was signing an Order of Recusal removing himself from the evidentiary process. By defending the Tulia drug trials he demonstrated that the habeas hearings the Texas Court of Appeals had requested would be an empty formality with a foregone conclusion. With the hearings short weeks away he was suddenly facing an open, objective inquiry into the Tulia affair.

Four days before the hearings were scheduled to begin Dallas attorney John Nation was asked to help Terry McEachern. "I didn't know anything about the Tulia cases," he recently told me. "If it wasn't in the sports section I didn't know it was happening."

If John Nation didn't know much about Tulia when he entered the courtroom in Tulia, four days of gripping testimony from dozens of witnesses filled in the basic outline. Tom Coleman's performance was an utter disaster. Realizing that the state's star witness had repeatedly lied under oath, Mr. Nation concluded the state of Texas could no longer defend him without suborning perjury. The evidentiary hearings came to a screeching halt and attorneys for both the state and the defense jointly stipulated that Mr. Coleman lacked credibility under oath. A month later, a Swisher County grand jury indicted Tom Coleman on three counts of aggravated perjury and a year later thirteen of Coleman's victims were set free in a dramatic scene at the Swisher County courthouse.

And now, twenty months after he was indicted by a Swisher County grand jury, Tom Coleman has been convicted of aggravated perjury. Sting defendants attending the trial were deeply disappointed when they learned their nemesis wouldn't be doing prison time. But getting an all-white jury in Lubbock Texas to convict a white cop on a felony charge is no easy feat and Rod Hobson and Yankee lawyer Jennifer Klar are to be commended for a tremendous achievement.

It is difficult to know if Coleman's attorneys believed all of the accusations they were slinging in the courtroom. Although Read et al bragged about reading through thousands of pages of trial transcripts their comments during the trial revealed only a superficial awareness of the relevant fact issues. For instance, accusing Freddie Brookins and his fellow defendants of being "in possession of drugs with intent to sell" was either a desperate misrepresentation or a sign of gross ignorance.

I doubt the jury had little interest in the evidentiary hearings of 2003 or that the Yankee lawyer issue figured prominently in their deliberations. They probably opted for probation because people go to prison for murder and drug dealing, not for lying.

Media interest in the Tulia story is receding rapidly. When the New York Times called me on Friday night it was quickly obvious that they hadn't been following the trial. The challenge now is to convince a cynical public that Tulia as a metaphor; a cautionary tale for the war on drugs.

The big lesson from Tulia is that the system doesn't work. Attorneys working within the system could were forced to make a deal with the devil and ask for God's forgiveness. Plainview attorney Paul Holloway traveled to Cochran County on his clients' behalf and invested thousands of hours in meticulous research. But in the end he found himself negotiating plea bargains. Given the constraints of the system it was the best he could do. Attorneys who accept court appointed cases must learn to live with the likes of Judge Ed Self. When they buck the system too vigorously they end up hurting their clients.

It should come as no surprise that the Tulia drug sting began with farmers like Gary Gardner, ex-preachers like Charles Kiker and Alan Bean and slaughterhouse foremen like Freddie Brookins Sr., or that the death blow was delivered by a band of Yankee lawyers. Just solutions were not available within the practical confines of the Texas legal system.

But on January 14, 2005 in Lubbock, Texas the Texas criminal justice system worked the way it was supposed to. Tom Coleman was represented by some of the best legal minds and mouths in the state of Texas and was still convicted of lying under oath. Tom will never work in law enforcement again and every narcotics officer in the state of Texas knows it. If that's the best we can do, we'll take it.

Alan Bean,
Tulia, Texas

Bad Solutions: List of Bills Increasing Criminal Penalties

"Not every tragedy can be prevented by legislation. Not every crime is reason to revamp the criminal code."

Staff editorial, Minneapolis Star-Tribune

Solutions for Texas has usefully compiled a list of all bills filed so far in the 79th Texas Legislature that increase prison or jail time. While no one condones criminal activity, these bills should be opposed as a class. The prisons are brimming, and already there are 1,941 separate felonies on the books, each passed one at a time by well-meaning legislators worried about preventing a specific crime, who but didn't stop to look at the big picture.

In the past, Grits has criticized the biennial legislative hobby of increasing criminal penalties without regard to the cost. The practice is known euphemistically as "enhancing" penalties, but nothing is enhanced by the practice. Instead, increasingly harsh penalties swell costs and harm families without reducing crime.

Will this be the year the Texas Legislature realizes the human and economic costs of increasing criminal sentences and changes direction? You wouldn't think so from these bills. It's early, though, and not crunch time, yet. Thanks to Ann for keeping track of this.

Beyond 'Blogging vs. Journalism'

This piece is the best thing I've read on blogging and journalism yet, which may just mean that I agree with a lot of it. Compare that to this clown.

Police surveillance cameras zoom half a mile

Mark Godsey at CrimProf blog has a great post documenting the expansion of police surveillance camera systems all over the country. Washington D.C.'s system allows an operator to zoom in on someone half a mile away. New York City's can read the text on a Broadway theater ticket in a scalper's hand from 50 feet. They're going up everywhere. Check it out.

If you want Texas-specific information about camera surveillance, check out what's happening in Dallas and Houston, plus this collection of posts on how police cameras could work together with biometric data the Texas Department of Public Safety wants to gather on drivers license applicants.

Legislation on medicinal pot may be coming

The Texas Tea Pad returned from a volunteer gig last week to report that legislation to provide an affirmative defense from prosecution for possession of doctor-recommended medical marijuana may soon be introduced in the Texas Legislature with bipartisan support. I'd sure think so; the idea is awfully popular.