Texas set to execute defendant who was in jail at the time of the crime

UPDATE (1/26): Swearingen has received a temporary, last-minute reprieve from the federal 5th Circuit Court of Appeals.

DNA may have identified another innocent man convicted and sentenced to Texas death row, says a Houston Chronicle editorial ("Room for Doubt," Jan. 23), but he'll die on Tuesday unless Governor Perry stays the execution:

Larry Ray Swearingen has lived on Texas death row for eight years, convicted of the rape-murder of a Montgomery County coed in 1998. He is scheduled for execution by lethal injection in Huntsville next Tuesday, despite the fact that a growing body of evidence indicates he could not have strangled 19-year-old Melissa Trotter and dumped her body in Sam Houston National Forest. ...

While plenty of circumstantial evidence indicated Swearingen, a convicted rapist, was a logical suspect, forensic facts not presented at his trial point elsewhere. Trotter’s body was discovered 10 years ago on Jan. 2, nearly a month after her disappearance from the Montgomery College campus in Conroe.

However, Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest.

Former Harris County Chief Medical Examiner Joye Carter, who testified against Swearingen in his trial, reexamined the physical evidence and has concluded that Trotter’s death occurred at least a week after Swearingen was taken into custody.

One expert, using a technique familiar to viewers of the CSI TV series, confirmed that finding by dating the development of insect larvae in the victim’s body.

Other exculpatory evidence included blood samples found under Trotter’s fingernails and a pubic hair recovered from a vaginal swab that came from someone other than Swearingen. ...

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

According to the Austin Statesman's coverage, the Court of Criminal Appeals threw out the claim without ruling on the merits of the new forensics:

Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

In such instances, I'm hard pressed to understand why prosecutors or the AG are so gung ho dismiss a viable actual innocence claim without vetting it thoroughly. After all, if Larry Swearingen didn't do it, that means the real killer is still out there.

It's similarly hard to see how the Court of Criminal Appeals members could sustain this conviction, ignoring on a legal technicality the recantation of the state's own forensics expert. Certainly that should meet the standard that "no reasonable jury" could have convicted Swearingen, knowing then what we know now.

Nationwide, about 2.3% of capital convictions are later overturned because the defendant was actually innocent, found a recent study out of Michigan State. The Court of Criminal Appeals' conduct in this case makes you wonder how many more were innocent but executed anyway.

More Madoff fallout

I was sorry to see this news from the Texas Observer:

Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition, says her nonprofit lost $119,000 in JEHT support for its juvenile justice program. “I’ve got a short amount of time to fill that gap,” she says. “Or else we have to let our program staff go.”

Kids guarding kids

While we haven't seen many staff prosecutions as a result of the contraband scandal in Texas adult prisons last fall, news arrives from Waco of a 23-year old TYC guard receiving a four year prison sentence for smuggling pot onto the Mart II unit. "Judge Matt Johnson of Waco’s 54th State District Court rejected a plea agreement between [Phillip Patrick] Spain and the McLennan County District Attorney’s Office that called for Spain to be placed on felony probation for 10 years."

Like the sex abuse allegations revealed in December, I think about this news with mixed emotions. On the one hand, clearly the agency's problems aren't fixed.

On the other, it's likely these issues would never even have come to light two or three years ago before the Office of Inspector General was created, and no prison - adult or juvie - is immune to corruption of youthful, underpaid, unqualified staff.

When you have a 23-year old guarding high school age youth, the risk they'll find they have more in common with the inmates than with their employer is always there.

It's also notable that the judge insisted on a harsher sentence than the District Attorney had agreed to; clearly officialdom is treating TYC cases a lot more seriously than in the past, for good or ill.

So the checks and balances installed at TYC appear stronger than in the past, but the agency sure could use a respite from the hail of bad news over the last couple of years. Mr. Spain did his coworkers no favors.

Proposed Michigan model would reduce Texas' incarceration costs

I'm on my way to Big D for a meeting and an overnight stay, and likely won't be posting again until the weekend. But I wanted to refer readers to this post from Doc Berman about a sentencing proposal in Michigan to save money on incarceration costs:

The State of Michigan could save $262 million in prison costs by 2015 by bringing parole policies in line with other states – and releasing thousands of prisoners earlier – according to a yearlong analysis of crime and punishment conducted by national policy center. ...

The key recommendation, to require most prisoners to be released after serving 120% of their minimum sentence, was endorsed by Republican and Democratic lawmakers and representatives of Gov. Jennifer Granholm, who have been working with the center on the analysis.

Such a change would have a huge impact on Texas' prison population if implemented here, particularly since fully 2/3 of TDCJ inmates are parole eligible.

Use this post as an open thread to discuss whether its time for Texas to reduce inmate populations so the state can afford to adequately pay guards and safely staff prison facilities, as well as pros and cons of the Michigan approach in Texas.

Need for eyewitness improvements recognized

Reacting to news that Dallas police will change their policy to require "blind" administration of photo lineups and showing photos one at a time instead of in a group, the Corpus Christi Caller Times editorialized today that, "If blind sequential lineups can reduce eyewitness mistakes, as the studies indicate, then every police department in Texas should be using that procedure."

Sen. Rodney Ellis, readers will recall, has filed SB 117 that would require Texas law enforcement agencies to create or modernize policies on conducting photo lineups - 88% of departments don't have any, and most that do don't conform to current best practices.

In related news, Roy Malpass, an eyewitness identification expert from the University of Texas at El Paso will be allowed to testify in a high-profile Louisiana murder trial whose outcome depends on eyewitness testimony.

RELATED:

• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Emotional pair of DNA exonerations argue for changing eyewitness ID procedures
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• UTEP creates one stop shopping site for eyewitness ID procedures

More things prosecutors hate about defense attorneys

Reacting to an anonymous Fort Worth prosecutor's list of the top ten things he hates about defense attorneys, over at the prosecutors' association user forum they've added quite a few more complaints to the list.

What to make of last-minute Bush clemencies?

Quite a few of my favorite blogs are producing good commentary about President Bush's last-minute pardons of two Border Patrol agents convicted of shooting an unarmed drug smuggler in the back near the Mexican border in Texas' western federal district. See commentary from Jacob Sullum at Reason Hit and Run, Doc Berman at Sentencing Law & Policy, Paul Burka from Texas Monthly, Jeralyn at Talk Left, and P.S. Ruckman at Pardon Power.

In the comments over at Paul Burka's shop, I offered my own view on the sentence commutations:

1) The BP agents committed a crime, covered it up, and deserved to be punished.

2) Their sentences were too long because of federal mandatory minimums sweepingly applied in an utterly undiscriminating fashion.

3) Therefore the commutations were justified based on the specifics of the cases, but

4) There are many, many thousands of similarly situated offenders who also received excessive, unfair prison terms under federal sentencing guidelines, so

5) It’s hypocritical to pick out two defendants whose commutations pander to Lou Dobbs and the right wing base while not applying the same principles of justice to others who are subject to indefensibly long mandatory minimums.

What's your opinion about the President's final act of clemency?

Prevention, punishment, mental illness and crime

The US Supreme Court has said executing the mentally retarded is unconstitutional, but the mentally ill are still fair game. Dr. Lucy Puryear, a clinical psychiatrist from the Baylor College of Medicine offers a thoughtful discussion at Women in Crime Ink regarding the astonishing case of Andre Thomas, a schizophrenic death row inmate who plucked out his only good eye and ate it (he'd pulled the first one out while sitting in jail awaiting his capital murder trial), adding a whole new dimension to the biblical adage, "an eye for an eye."

Thomas' crime couldn't have been more horrific. As Dr. Puryear described it:

In 2004 Andre Thomas killed his wife and children, cut their hearts out, put the hearts in his pocket, and walked outside. He then went home, put them in a plastic bag and threw them out. He stabbed himself three times in the chest and then walked into a police station to report his crime.

But while most of the public debate about Thomas revolves around whether he should be executed for his crime, Dr. Puryear offers a more constructive reaction, wondering how his crime might have been prevented in the first place:

To those of you who would suggest that I am soft on crime, consider this novel idea. How about we make mental health treatment available in the community to those who need it. Had Mr. Thomas been adequately treated and monitored he never would have killed his family or plucked out his eye. Three people would be alive today and an enormous amount of money would be saved keeping him out of the prison system. That's not soft on crime, that's preventing crime.

Excellent point! Given that Andre Thomas had twice sought psychiatric help at a local hospital in the weeks before he murdered his family, these observations are particularly salient. In the comments section she added:

I am not suggesting that being mentally ill is a get out of jail free card.

I am saying that the system is broken. That people with severe mental illnesses often do not receive adequate care in the community. It can take three months or longer to get an outpatient appointment in our "free" (paid for by taxpayers)mental health system in Harris County. While waiting for these appointments people go off of their medications, become ill, and SOME commit crimes.

Puryear particularly lauded Harris County's recent creation of a mental health court:

There may be one way to make some sense out of the issue of the mentally ill who commit crimes. Several communities have Mental Health Courts. These courts are in place for those defendants who have histories of mental illness before committing a crime, or committed a crime while mentally ill. The lawyers, judges, and others assigned to these courts have special training in mental illness and are equipped to knowledgeably handle these defendants. Instead of the revolving door from prison to back on the streets where psychiatric care is lacking, then back in prison when another crime is committed, these persons can be put into a system where follow-up is mandatory and resources are available. Another example of not being soft on crime, but preventing crime.

And in the comments, the good doctor mentioned a common sense solution for mentally ill offenders who go off their meds:

When I worked briefly in Ohio we could get outpatient commitments that meant that a patient was mandated to attend outpatient appointments. If they did not show they could be picked up and returned to an inpatient facility.

Dr. Puryear's post reminds us that by the time mentally ill people commit heinous crimes, we're having the discussion too late.

I really admire Lucy's professionalism and her common sense reaction to this sad, heinous case. While most of us, myself included, can do little but gape in awe at such a monstrous crime, her writing demonstrates an ability to perceive the thread of humanity underlying Thomas' illness and recognize that, even though a horribly tragedy occurred, the outcome wasn't inevitable. If society learns the right lessons, maybe more such horrific cases can be prevented in the future.

Budget Choices: TDCJ needs more money or fewer prisoners

More detail emerged yesterday on Texas' budget crisis and the implications for criminal justice policy. Reports the Austin Statesman ("Proposed budget shows $3.7 billion shortfall," Jan. 21):

Maintaining basic state services over the next two years will cost Texas almost $84 billion, $3.7 billion more in general revenue than the state expects to raise during that period, according to the Senate budget introduced Tuesday.

However, a proposed 20% pay hike for adult prison guards and parole officers didn't make it into the draft budgets, nor did security improvements aimed at reducing contraband flows:

Among the budget increases proposed for Texas' prison system were $22.2 million for pay raises for correctional and parole officers, and $10.4 million in bond funds to repair the Hurricane Ike-damaged prison hospital in Galveston.

The proposed pay raises were far less than the $453.4 million sought by prison officials, and the budget did not address the $176 million needed for cost increases this year and the $66 million sought for security upgrades.

It's not at all clear TDCJ could safely operate without a much larger portion of the increases they've requested because past agency decisions to underpay staff, skimp on healthcare and ignore needed security improvements have backed officials into a financial corner. TDCJ's cost per prisoner in recent years has been artificially low and cannot be sustained at current levels.

I've said before, given TDCJ's understaffing crisis (they're around 3,000 guards short of minimum staffing), perhaps it's now time to consider actually reducing the size of Texas' Prison Nation in order to stave off rising incarceration costs.

If you add up every Texan currently in prison, on probation, on parole, or sitting in a county jail, it totals slightly more than the number of residents living in Austin - about one out of every 21 adults. At more than 737,000 people, they would make up the fourth largest city in the state after Houston, Dallas and San Antonio. Indeed, that's more than total 2004 populations of Washington, D.C. and four US states: Alaska, North Dakota, Vermont and Wyoming.

Can we really afford for the corrections system to supervise the equivalent of a major Texas city? According to TDCJ's official budget request, the agency needs around $1.2 billion extra over the next biennium to safely house the same number of prisoners it has now.

Other states facing budget crises are looking to reduce prison populations to save money, and if Lone Star legislators won't pony up enough to safely guard the 112 prison units TDCJ operates, Texas should do so, too. It wouldn't be that hard, since fully 2/3 of Texas prison inmates are parole eligible.

Alternatively, a bipartisan group of judges from Houston recently suggested another way to diminish new prison entries - reducing to a Class A misdemeanor charges against low-level, nonviolent drug offenders who possess less than a gram of a controlled substance. There are quite a few ways the Lege could skin that cat.

The Texas Legislature should at least ask the question: How many fewer prisoners would we have to have for the Department of Criminal Justice to a) live within its means and b) still provide adequate security and staffing?

Herring, civil liability, and Texas' exclusionary rule

Smart folks are still trying to work out whether the Herring case decided last week by the US Supreme Court narrowing the exclusionary rule is a big deal or a little one, and several good blog posts by attorneys have helped me think about the issue more concretely.

Kent Scheidegger even thinks "Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio," which extended the federal exclusionary rule to state courts. (That would be his "Holy Grail," btw, not mine.) He says that after Herring, arguably, "a defendant seeking to suppress evidence [must] establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was ... 'deliberate, reckless, or grossly negligent conduct'." That would limit exclusion to an incredibly narrow class of cases.

Outside of federal court, for Texans, at least, the impact is much less profound. Robert Guest points out that Texas relies on our own state statutory exclusionary rule, not one created by federal courts.

So when you hear complaints that the exclusionary rule amounts to judges "legislating from the bench," that's a reference to the federal debate. In Texas, legislators crafted the rule back in 1925. The current version reads:

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Guest points out that the Texas Court of Criminal Appeals in 1999 already created the same loophole in Texas' exclusionary rule as SCOTUS just created in federal Fourth Amendment doctrine.

Tom Goldstein had expressed concern that Herring, for the first time, "extended the good faith exception to ordinary police conduct" (though Orin Kerr disagrees). Whatever the case, though, Texas' statute already has a "good faith" exception written into it that the CCA ruled allows evidence admitted from an arrest based on a recalled warrant - the identical circumstance that SCOTUS addressed in Herring.

So while the ruling will limit evidence exclusion in federal cases, for state cases, which involve the vast majority of police searches, the "new" extension of a good faith exception to police is mostly redundant - the Court of Criminal Appeals already went there years ago.

Herring also brought out more traditional, debates over whether the exclusionary rule is a viable public policy approach, regardless of whether it's created by the Legislature (as in Texas) or the federal courts. The National Review's Jonah Goldberg argued that "I don’t see why cops who break the rules intentionally or unintentionally should be punished by having objectively guilty criminals let loose on society."

To this, Instapundit Glenn Reynolds replied with a comment that almost precisely reflects my own view:

These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.

If the alternative is a constitutionally originalist approach that eliminates judicial-invented immunity for police and prosecutors, I'd gladly agree there'd be little need for an overt exclusionary rule. Such matters could be handled in the civil courts, as the founders intended. Short of that, however, eliminating the exclusionary rule would remove the only significant institutional check on certain types of official misconduct without creating a viable alternative to prevent abuse.

False confessions here, there, and yon

Our pal Rage Judicata points to a Houston case where new DNA evidence appears to contradict a recanted confession by Charles Raby, who was convicted of murdering 72-year old Edna Franklin in 1994 and currently resides on death row. According to the Houston Chronicle, "recent DNA testing on genetic material found on Franklin’s blood-caked fingernails points to someone else, Raby’s lawyers contend."

In response, Rage poses a question discussed on Grits before, and which I think must bewilder every right thinking person who considers the issue of false confessions:

I just don't understand how someone not guilty of murder could confess to it. Or why he was sent to death row despite a confession--usually that gets you a plea. I can see confessing to theft to get out of jail time, but murder? Of killing a small, frail, woman?

The idea of confessing to such a monstrous act does seem inexplicable. Yet we see false confessions in even the most heinous of crimes.

For example, I couldn't imagine an innocent person admitting to a worse crime than Austin's Yogurt Shop murders, where four teenage girls were raped and murdered and the building torched to destroy the evidence. But some 50 different people confessed to that high-profile atrocity, most of whom police could easily show had nothing to do with the offense.

The reasons vary. Some were mentally ill. Some were weak minded people trying to please authority. And some of them succumbed to harsh or deceptive interrogation techniques, particularly by later-defrocked homicide detective Hector Polanco, who has a history of securing false confessions.

Robert Springsteen and Michael Scott confessed to the Yogurt Shop murders after long, grueling interrogation sessions. (For Michael Scott, it went on 20 straight hours). Those confessions led to their later-overturned convictions after they recanted and the courts wouldn't let the prosecution use their statements against one another. No other evidence implicated the pair.

In the Yogurt Shop case, recently tested DNA ultimately disproved the prosecution's original, convicting theory, and, just as with Raby, points to some heretofore unidentified perpetrator. You could say of the Yogurt Shop defendants, just as Rage said of Raby's case:

It will be interesting to see how the state explains the new DNA results and if their theory at trial was that he acted alone this may be just enough evidence for a new trial--or at least it would be if the CCA didn't allow new theories to be brought up on appeal, which they do in cases like this.

A new theory that explained why Raby's DNA wasn't found on the victim's defensive wounds would likely require the existence of an accomplice, which would contradict the eyewitness who saw Raby, alone, jump a fence (from across a yard, at night) around the time of the crime. In the Yogurt Shop case, I'm not sure what new theory (besides actual innocence) explains why the DNA of a confessed rapist wouldn't match the crime scene rape kit.

These are not isolated incidents. Yet another recent capital murder case, this one a quadruple murder in Collin County, endured an especially tortured investigation process thanks to false confessions by three different, unrelated suspects, none of whom authorities now believe were actually involved in the crime. (They're still in trial; one hopes, now, they've finally got the right guy.)

Like Rage, I think most of us can only shake our heads and admit we "don't understand how someone not guilty of murder could confess to it," though academic research is beginning to provide compelling explanations.

False confessions challenge our core assumptions. When Rage writes, "I can see confessing to theft to get out of jail time, but murder?," he's expressing what's probably most people's common sense reaction.

But in fact, when you look at the likely false confessions in the high profile cases discussed above, it almost seems they're more likely in a heinous case than in a petty theft. After all, nobody's going to spend 20 hours interrogating a shoplifter, so they might never be subjected to the level of coercion and manipulation that cause a murder suspect to succumb.

University of San Francisco law prof Richard Leo suggests recording interrogations would at least provide a record to evaluate later whether a confession was likely false, and certainly in Raby's case it would be nice to go back now - given the conflicting evidence - and hear what he actually told investigators when he confessed, and under what circumstances.

Senate committee: Asset forfeiture too often a 'profit making' venture

In criminal trials the burden of proof falls on the state, which is why Texas prosecutors prefer to get asset forfeiture cases into civil court, where the burden lies with the property owner.

However, if the Texas Senate Criminal Justice Committee had its way, says their interim report (large pdf), the state would change the asset forfeiture law so the burden of proof shifts to the government to prove property was tainted by illegality, where currently that burden lies on the property owner. (Interim charge 6, p. 68)

Right now, "In civil forfeiture cases, the burden of proof is on the individual to get the property back from the state once the underlying case is dismissed or acquitted." However, "By placing the burden of proof on the property owner, the government has an unfair advantage over property owners in a lawsuit to get their property returned. Such a fight can come at a great cost to property owners. Therefore the committee recommends for property seized under civil law, the burden of proving the 'guilt' of the property should shift to the government."

If they're making good cases, that new standard should be no big deal. But the committee heard "allegations of profit making" on asset forfeiture cases by district attorneys. "In Texas, with its smuggling corridors to Mexico, public safety agencies seized more than $125 million" in 2007, and "Some poorer counties have come to rely on drug money to pay for their basic operations." The report also documented forfeiture funds spent to pay for office parties, bonuses, trips to Hawaii, and even TV ads for a DA's reelection campaign!

They also intimated that simply improving documentation wouldn't fix the problem:

"Giving seizing agencies direct financial incentives in forfeiture is an unsound policy that risks skewing enforcement priorities," the committee concluded, suggesting that "one approach" to the issue might be to "have forfeited assets deposited into a central treasury at the state level," which would "remove the incentive for law enforcement agencies to focus more on assets rather than criminal acts" and provide "greater legislative oversight of forfeited proceeds."

The committee's final recommendations didn't go that far, suggesting only that the state centralize reporting on asset forfeiture funds and give the Comptroller authority to audit and investigate abuses.

Still, that's a lot of money sitting around in local slush funds. In tight budget times, I wouldn't be surprised to see the Legislature insist that money is spent on things like drug treatment, diversion programs, and other public safety priorities, not just for bonuses, travel and booze.

Sundance Film Touted as Brokeback Mountain meets Catch Me If You Can, Set in Harris County Jail

Congrats to Houston writer Steve McVicker, whose nonfiction tale, I Love You, Phillip Morris, will premiere on the big screen at the Sundance Film Festival starring A-list stars Jim Carrey and Ewan McGregor. Reported the Houston Chronicle:

Signing Carrey to play Steven Russell, a family man and peace officer turned escape artist and one-man Texas crime spree, and getting McGregor to play his lockup lover, Phillip Morris, means the film will get plenty of attention at Sundance and should have good box-office prospects. Last week, the entertainment industry magazine Variety led its Sundance story with a photo from the film and a first-paragraph mention.

Written and directed by Glenn Ficarra and John Requa, the screenwriters of the notoriously funny Bad Santa, starring Billy Bob Thornton, I Love You Phillip Morris is being pitched as Catch Me If You Can meets Brokeback Mountain. The film’s 3-minute trailer, all McVicker has seen or wants to see before Sundance, emphasizes comedy over drama and romance....

The story is bizarre but true. Russell met Morris while in the law library of the Harris County Jail. Russell was in for insurance fraud, Morris for forgetting to return a rental car. It was love at first sight. Romance proved the great inspiration of Russell’s life, but it was also his undoing.

Once Morris was out of jail, Russell developed a bad habit: using wily ruses to break out in order to be with him. While free, he compounded his error by pulling clever cons in order to buy Russell a good lifestyle. Clever or not, he eventually was caught again.

“He’s a really personable guy, very charming,” says McVicker, who interviewed Russell dozens of times in the Michael Unit of the Texas prison system, first for the Press, then for his book. “The kind of guy I’d like to have dinner with, he’s really interesting.

“But he’s also a crook.”

McVicker's one of Houston's top reporters on justice and public safety topics, doing some of his best work at the Houston Press and the Houston Chronicle covering the fallout from that city's infamous crime lab scandal. Perhaps he'll next publish a book on that topic; given the overarching Keystone Kops component to the Houston crime lab story, it might even be the kind of vehicle a comedic Jim Carrey could star in.

Williamson DA sees drug penalty debate as turf war

Speaking of venting prosecutors, what do you think is Williamson County District Attorney John Bradley's biggest beef with a proposal by Houston judges to reduce drug possession penalties from a felony to a misdemeanor?

You guessed it: It would reduce the scope of his personal, bureaucratic turf. We can't have that! Bradley writes on the District and County Attorneys user forum:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail).

Perhaps so, but those crimes have mandatory probation on the first offense, anyway, so the impact on jails wouldn't be as substantial as Bradley makes out, certainly not "the biggest unfunded mandate ever perpetrated by the Texas Legislature," as JB hyperbolizes. The Lege could further mitigate additional costs by making the charge a state jail felony on the third offense.

There are a lot of public policy benefits to producing fewer new drug felons on possession-only charges: Not only does it save public resources on incarceration, with only a misdemeanor rap, petty offenders won't have the lifelong employment, housing and educational consequences that come with having a felony on your record.

Sentences for state jail felonies are a flat two years, so reduced costs to the state would be substantial - as much as $36,000 in incarceration costs alone for every new felony inmate diverted. That frees up a lot of money, as Judge Michael McSpadden pointed out, to pay for funding new misdemeanor drug courts.

The Lege could also simultaneously enact policies that would reduce jail populations for other drug offenses. E.g., reducing petty marijuana possession to a (ticket only) Class C misdemeanor would reduce arrests, jail overcrowding, indigent defense costs, and actually increase local revenue to help pay for the new Class As because arrests would generate fine revenue.

There are absolutely ways the Texas Legislature could adjust drug penalties that would save the state and counties money overall, if there's the political will. It's fascinating to me that the first argument out of the box from opponents isn't based on some moral commitment that penny ante drug use deserves felony charges, but just that it might slice off a chunk of the District Attorneys' turf.

RELATED: States reducing inmate numbers to save money: Should Texas?

The Top Ten Things Prosecutors Hate About Defense Attorneys

An Anonymous prosecutor vents on Fort Worth defense lawyer Shawn Matlock's blog about attorney-bloggers who "complain about ignorant prosecutors that don't understand the lives of criminals defendants." He seems kinda lonely, though, and would benefit some reader reactions. :) Via Brian Tannebaum.

As always, you can find ongoing prosecutor venting here.

Obama shouldn't waste stimulus money on Byrne grants

Some bad ideas apparently just won't die, we learn from Radley Balko at The Agitator:

President-Elect Obama’s stimulus package calls for $3 billion in new Byrne Grants, and $1 billion in COPS grants—both are federal block grant programs for local police departments. For some reason, Democrats seem to love these grants. The Bush administration and Republicans in Congress had begun phasing them out.

As I explained in a piece for Slate last October, studies have shown both programs to be ineffective at fighting crime. Worse, there’s good evidence that they actually cause harm. While designated for community policing efforts, COPS grants have actually been used by many departments to start or outfit SWAT teams, a point I explicitly made in July 2007 to Rep. Bobby Scott (D-Va.), when I testified before the House Subcommittee on Crime he chairs. Scott seemed surprised when I told him. But apparently, it didn’t affect him enough to prevent him from restarting the program.

Byrne Grants, meanwhile, are often tied directly to drug arrests, warping police department priorities by encouraging low-level drug busts to juke up department arrest statistics . . . so they can apply for more grants. We have Byrne grants to thank for the civil rights disasters in Tulia and Hearne, Texas, and for the continuing problem of out of control multijurisdictional drug task forces.

In Texas, the biggest Byrne grant funded projects have seemed almost cursed. Governor Perry canceled funding for the state's network of regional drug task forces after the scandals Balko mentioned, shifting most of the money instead to border security grants to South Texas Sheriffs (one of whom, ironically, was allegedly on the payroll of the Mexican Gulf Cartel).

But there's a more important, pragmatic reason Byrne grants shouldn't be part of a "stimulus" package: Law enforcement spending doesn't provide the dramatic economic multiplier effects as do other government of expenditures like health care or education.

When the state funds more low-level drug enforcement by regional task forces, for example, a few officers may be employed, a few new vehicles purchased, etc.. But when arrests are made it actually takes money out of the economy and puts potential workers (and taxpayers) 100% on the state's dole - Texas state prisoners cost taxpayers nearly $18,000 per year per inmate.

By comparison, say the feds were to pick up half the tab for the state's Medicaid or CHIP expenses. The feds already match the state's Medicaid contribution by about 2-1 (more for CHIP), so paying half the state's share would mean we get a 4-1 return on our investment or higher, plus more people get health care. Instead of hiring cops and jailers to remove workers from employment, expanding health care increases employment in health care services, products, etc., which increases the multiplier effect even more.

If the feds wants to invest in jobs programs, cops and prisons have a relatively small economic multiplier effect (see this report from the Sentencing Project) while other investments - in education, healthcare, and transportation infrastructure, for example - will give much more job-producing bang for the buck.

Unlike Balko, I'm actually more or less a Keynesian; I believe in the idea behind the stimulus package, including assistance to states. But Byrne grants aren't good stimulus. They should only be debated on the law enforcement merits (and on those, they should be rejected). They're by far among the worst available options for boosting the economy.

RELATED (Updated 1/17): While we're on the subject of the incoming president's economic policies, I noticed Obama has floated the name of a new chief of the Ex-Im Bank, Fred Hochberg, who has mostly garnered attention because he would be Obama's first openly gay appointee. Whoever is the new head of the Ex-Im Bank, they need to revisit the inadequate due diligence policies installed by their predecessor after the agency gave loans to fake companies associated with the bloody Juarez cartel. We've seen a few media reports and one arrest, but I'm convinced that's only the tip of the iceberg.

Ironically, the man who oversaw the Ex-Im Bank when those loans were made, and whose decision it was to not require more thorough vetting, was later appointed by President Bush as Chief Investment Officer of the Troubled Asset Relief Fund. Personally I'd prefer the new president put somebody in that slot who's a little more keen on preventing fraud.

Dallas PD implements sequential, blind lineups for eyewitnesses

Excellent news!

Houston judges from both parties say reduce drug possession penalties

Here's an astonishing development: Sixteen of 22 Harris County felony court judges, including seven Democrats and nine Republicans, say they favor reduction of low-level drug possession in Texas from a state jail felony to a Class A misdemeanor ("Judge request to decriminalize (sic) drug use gets support," Houston Chronicle, Jan. 16):

State District Judge Michael McSpadden on Wednesday sent a letter to the state’s top officials and Houston’s senators and representatives asking for a change in what he called “draconian” laws.

During the last session, McSpadden stood alone when he asked that charges for possession of a controlled substance of less than 1 gram be reduced from a state jail felony to a misdemeanor. Two years later, judges from both major political parties are joining the Republican who has been on the bench for more than 20 years.

“Sixteen of us feel that it’s just unfair to be convicted for a residue amount and be labeled a felon, which changes your whole life,” McSpadden said. “We’re not talking about legalizing it; we’re talking about making it a misdemeanor.”

Here's the list of judges supporting the change:

Judges who signed on with McSpadden include fellow Republicans Debbie Mantooth Stricklin, Jeannine Barr, Vanessa Velasquez, Denise Collins, Marc Carter, Belinda Hill, Joan Campbell and Jim Wallace.

Democrats supporting the initiative, who were all elected in November, include Ruben Guerrero, Shawna Reagin, Kevin Fine, David Mendoza, Randy Roll, Hazel Jones and Maria Jackson.

This seems like almost a watershed moment; Judge McSpadden has been on this lonely quest for years and deserves a lot of credit for convincing his fellow judges to put their reputations on the line with such a request:

In his letter, McSpadden suggested reducing the charge and mandating drug treatment. He also recommended funding misdemeanor drug courts.

McSpadden said 25 percent to 30 percent of Harris County’s 22 criminal district court dockets are felony charges for less than 1 gram of a controlled substance.

The change, McSpadden argues, would lower dockets and create uniform enforcement across the state. He noted that Dallas County police and prosecutors place a lower priority on these offenses, leading to disparate treatment between counties.

McSpadden said his concerns come from fielding complaints about the system from juries and residents.

“The ‘War on Drugs’ isn’t working, and we as judges realize it,” McSpadden said. “And the public realizes it.”

New Harris DA Pat Lykos offered mostly pragmatic objections to the idea, which, while less than supportive, contrasted starkly to the lock-em-up priorities of her predecessor. Houston Rep. Harold Dutton has filed HB 287 that would enact the change in the law the judges are requesting.

Via Defending People.

Without exclusionary rule, negligent police are just 'wild and crazy guys'

I'd expressed concern that the new SCOTUS precedent from the Herring case decided this week - which says that the exclusionary rule does not apply to negligent errors by the police - will make the problem of rights violations based on database errors even harder to solve. TChris at TalkLeft agreed, declaring "The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests."

But the discussion from news reports and the legal blogosphere makes me think the implications of Herring are a lot broader than that. Tom Goldstein at SCOTUSBlog predicts that "we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century." That's because:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct. ...

Previously, the Court had applied the good faith exception only to non-police conduct.

In the dissent, Justice Ginsburg said the ruling violates a "foundational premise of tort law":

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.

One wonders whether the majority's idea that liability doesn't deter negligence will wind its way into SCOTUS' civil rulings on non-law enforcement topics - it's a pretty radical revision of a fundamental legal principle. But as troublesome as that sounds, Goldstein says Ginsburg actually understates the significance of the ruling:

the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.

Scott Greenfield calls negligence the "new loophole" in the Fourth Amendment, while an Indiana University law prof quoted in the New York Times agreed the the ruling has broader implications, declaring, “'It may well be ... that courts will take this as a green light to ignore police negligence all over the place.'” At Lawyers Guns and Money, Scott Lemieux also predicts the ruling will be applied broadly:

while I'm not without a certain sympathy for the idea that it's appropriate to balance the effects of applying the rule based on the effects on a particular case, the fact that the Court permitted an exception in a run-of-the-mill drug possession and gun case as opposed to a serious violent crime makes clear that the cost-benefit analysis will be done with a 2-ton anvil on the state's side. There's no serious weighing of costs and benefits being done here at all.

Doug Weathers, a lawyer-blogger out of Fort Worth, questions whether the ruling promotes negligent policing:

The Supreme Court majority apparently believed that this situation called for a new extension of the good faith exception to include that negligent errors by the police generally do not trigger the exclusionary rule. The Court made much of the "innocent" conduct of the police, however, does this new exception deter police from wrongful conduct to get at evidence or encourage? Rather than encourage professionalism and competence in law enforcement, the ruling today says do your job with negligence if need be because we the Supreme Court have your back. Better for the government to prevail in a single drug case than to protect citizens with a 4th Amendment that punishes the police for their own negligence. The whole thing smells fishy to me.

Robert Guest thinks the search in Herring should have been voided even under the new majority ruling, reasonably asking, "If a recalled warrant is still in the system after 5 months, isn't that evidence of 'reckless disregard' or 'systemic error'?"

Without the exclusionary rule, one wonders what, if any, checks remain on negligent actions by police? Justice Ginsburg's dissent says there are none, because:

Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” .... Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry.

I'd have to agree that without "civil liability," "criminal prosecutions" or "administrative sanctions," I can't see a single, meaningful restraint remaining on negligent police conduct. If the exclusionary rule will not apply in such cases, what if any means are left to deter negligent behavior?

Given that SCOTUS just turned the exclusionary rule into a full-blown joke, Instapundit Glenn Reynolds offered an especially apropos analogy writing about the case in the New York Post:

COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don't pay taxes. If the IRS finds out, you explain: "I forgot." Then, if that's not enough, you say, "Well, excuuuse me!"

Those negligent police officers are certainly wild and crazy guys!

Layoffs at TYC

Texas Youth Commission Executive Commissioner Cherie Townsend sent out this email today to TYC employees announcing significant layoffs:

I am certain most of you are aware that the Sunset Advisory Commission met yesterday and voted 6-5 to abolish the Texas Youth Commission and the Texas Juvenile Probation Commission and to establish the Texas Juvenile Justice Department by September 1, 2010. It was clear during the discussion that everyone is most concerned with doing the right thing for youth and for our communities. There are differences of opinion on how that might best be accomplished. It’s important to keep in mind that this is merely a first step in a lengthy process that will continue throughout the legislative session and there could be any number of outcomes that result from this recommendation. While we will continue to observe the legislative process, remember that our jobs have not changed. Each day, we need to commit ourselves to providing the best service to our youth, our coworkers, and the State of Texas. As an agency on the path of reform, your competence, dedication and exemplary service is more critical than ever.

Today, I am releasing the second phase of our agency right-sizing efforts. As we have been discussing, it is necessary to adjust our workforce to reflect the agency's reduced youth population and our current appropriations. It is important to note that throughout our right-sizing efforts, we have maintained our commitment to best practice workloads and staffing ratios for juvenile justice and specialized treatment in our staffing plan. JCO staffing/supervision ratios of 1:12, case manager ratios of 1:16 and 1:8 (specialized), and teacher ratios of 1:10 (average) are maintained as we right-size our workforce. And, we have been very careful to ensure that we are maintaining appropriate teacher certifications within our educational programs.

We will be eliminating approximately 430 positions throughout our institutions, effective March 1, 2009. While a number of those positions are currently unfilled, 100 employees will be losing their jobs. By the time you receive this email, most of those who are affected by this latest Reduction in Force (RIF) will have been notified.

I am committed to doing everything possible to assist those affected by this layoff. Human Resources will conduct one-on-one sessions with each affected employee to provide them with specific information about opportunities for transfer to other TYC facilities. Those affected will be given priority consideration to fill vacancies for which they are qualified. Those who would like to transfer to a vacancy at another facility will be reimbursed up to $500 for moving expenses.

While this is a difficult time, this reorganization and downsizing is necessary to accommodate our current youth population and budgetary constraints. There will be one additional step in our right-sizing efforts that will contain a final round of staff reductions, as well as possible facility closures. I expect to announce these actions within a few weeks.

We are all sorry to be losing friends and coworkers whose service and dedication has helped our reform efforts. However, while this time of transition is sometimes painful, it is not endless. Please continue to do your best work and I promise to keep you informed on events affecting our agency.

Sincerely,

Cherie

I'm enabling comments on this post, for now, but please stay on topic and play nice.

Justice News Roundup

While I'm busy today with other tasks, here's a roundup of current criminal justice stories that deserve Grits readers' attention:

Lies and Damn Lies
Six different Dallas police officers allegedly lied in a sworn statement about evidence in a drug case, and the defendant's defense attorneys came up with video evidence to prove the point.

Someplace for 'nowhere kids'
The Waco Tribune Herald has a staff editorial lauding local investments in juvenile justice infrastructure and "lament[ing] the lack of transitional programs for young people returning from the TYC." The Senate Criminal Justice Committee raised similar concerns in its recent interim report (pdf).

Mental Health Court Profile
See an excellent profile of Judge Jan Krocker who will run Harris County's new mental health court.

Recovering addict to preside over drug cases
New Harris County Judge Kevin Fine, himself a recovering addict, wants to focus his docket on drug crimes, declaring "My goal is to help as many people with substance abuse problems that really want help to get help and to reduce the number of those people who go to the penitentiary, because it clearly doesn't work."

Re-Entry Focus of Bexar Ministry
The SA Express News published a feature on Bexar County Detention Ministries and their efforts helping ex-prisoners with re-entry services.

Copkiller Claims Castle Doctrine Defense
Will the Castle Doctrine law passed by the 80th Texas Legislature provide a valid defense for the killer of a Dallas police officer? Possibly: Police lied about who was at the door then tried to force their way in when Officer Norman Smith was shot. The shooter was not the target of the warrant and says he didn't know they were police when he fired.

Defensive, Much?
See an account of Dallas County DA Craig Watkins speech this week to the Texas prosecutors association, but some of them didn't think they needed to hear his message. Said Greg Buckley, the assistant district attorney in Childress County, "I appreciate him wanting to tell us to do the right thing. But it may be that he just has more problems with it in his department than we do." Or it may be that much of Watkins' audience is living in denial.

Innocent and Starting Over
On my brother's blog we find a story of a Louisiana man who's starting his own leatherworking business after spending more than two decades in Angola prison on a false rape conviction.

DOJ Civil Rights Enforcement Tainted
A new report from the DOJ inspector general alleges that the Bush Administration ran the Justice Department's Civil Rights Division to promote a partisan political agenda.

Narco Juniors
Says Reuters, "Feuding gangs in the violent cities of Tijuana and Ciudad Juarez prize teenage drug cartel members, known as 'narco juniors,' because they give the attacks an added element of surprise and because they can't be given long prison sentences, police and social workers say."

Estimating false convictions: Thousands of Texas prisoners are likely innocent

The string of DNA exonerations witnessed in recent years has made everyone in the justice system aware that more innocent people are convicted of crimes than anyone previously thought. But what percentage of total convictions are false ones?

This is a difficult question because it's hard to find an accurate denominator for comparison.

Nobody thinks every innocent person has been identified through DNA testing, and indeed no biological evidence exists to test in the vast majority of criminal cases. So even though we know 39 Texans have been exonerated by DNA, we don't know what percentage of criminal convictions overall are false.

One of the few datasets that generates a statistically viable denominator comes from capital murder cases, for which a new study from Michigan State provides a new, national calculation:

Among defendants sentenced to death in the United States since 1973, at least 2.3 percent—and possibly more—were falsely convicted, said U-M law professor Samuel Gross in a study co-authored by Barbara O'Brien, a professor at Michigan State University College of Law.

If defendants who were sentenced to prison had been freed because of innocence at the same rate as those who were sentenced to death, there would have been nearly 87,000 non-death row exonerations in the United States from 1989 through 2003, rather than the 266 that were reported, the study said.

"The main thing we can safely conclude from exonerations of falsely convicted defendants is that there are many other false convictions that we have not discovered," said Gross, whose research has focused on the death penalty, false convictions and eyewitness identification.

Since 1989, nearly all exonerations in the United States fall into three categories: rape convictions, because of post-conviction DNA testing; murder convictions, and especially death sentences, which are subjected to much more detailed post-conviction reinvestigation than other convictions; and a few groups of false drug and gun possession convictions that were produced by concerted programs of police perjury that later unraveled.

As result, researchers know little about false convictions among crimes of violence other than murder or rape, even though false convictions for robbery could greatly outnumber those for rape and murder. And researchers know next to nothing about false convictions for other types of crimes, such as property crimes, misdemeanors and white collar crimes.

The exoneration rate in Texas for capital murder convictions is slightly lower than in this national study.

Another dataset that lends itself to statistically valid innocence estimates come from DNA exonerations. In Texas, 3.3% of cases solved by DNA evidence resulted in exonerating convicted defendants.

So let's guess that the false conviction rate in Texas is somewhere between 2.3-3.3%: With around 155,000 prisoners, that would mean between 3,500 and 5,000 or so current Texas prison inmates were falsely convicted.

Another 10-15,000 falsely convicted people are on the probation rolls, this data implies - perhaps even more since innocent people may be more likely to accept a plea for probation than risk incarceration for something they didn't do.

That's a helluva lot of folks.

Sunset recommends TYC/probation merger

Last night around 10:30, the Sunset Advisory Commission voted 6-5 in favor of merging the Texas Youth Commission and the Juvenile Probation Commission. So that recommendation will be in the agencies' Sunset bill, though it will still be debated and possibly changed during the legislative process.

RELATED: See Grits' testimony on the merger idea to the Sunset Commission.

MORE: In the Fort Worth Star Telegram, Rick Perry,

Said he is withholding judgment on a state advisory agency’s plan to merge the scandal-plagued Texas Youth Commission, the state’s youth correctional system, with the Juvenile Probation Commission to form a new juvenile justice department. Perry said the TYC is "back on track" after reports of abuses and warned that consolidating agencies sometimes results in "unintended consequences."

Nonprofit seeks juvie justice volunteer

The Texas Criminal Justice Coalition is looking for volunteer help on juvenile justice issues during the 81st Texas Legislature, so I wanted to pass on their request for an Austin-based "research assistant" in case any readers are interested:

TCJC Seeks Volunteers

If you live in Austin and want to participate on the front lines to help reform the criminal justice system, you couldn't do much better than to hook up with the Texas Criminal Justice Coalition , which is looking for research assistants for the 2009 Legislative Session.

The Texas Criminal Justice Coalition, a non-profit policy reform and advocacy organization, has volunteer opportunities open to individuals having an interest in the criminal justice system and a passion for social justice. TCJC is currently looking to fill the volunteer/internship position for a Juvenile Justice Research Assistant. Check out the job description and application here (link to http://criminaljusticecoalition.org/juvenile_justice).

Interested applicants should contact Jazmin at jacuna@criminaljusticecoalition.org or 512-441-8123 ext. 101, for more information.

Exclusionary rule takes a gut shot

Before I had a chance to post on a SCOTUS decision issued today (see the New York Times coverage) that eliminates the exclusionary rule when civil liberties are violated accidentally because of database errors, Texas State Trooper Association attorney Don Dickson left a comment on a related Grits post that essentially sums up my concerns:

by a 5-4 vote, the SCOTUS ruled today that an erroneous crime record - in this case, a warrant which had been recalled but still showed up on someone's records - was not sufficient to trigger the exclusionary rule after a search incident to arrest on that warrant revealed that the subject, a convicted felon, was carrying a firearm and drugs.

I have mixed feelings about the ruling. On the one hand, I feel that the exclusionary rule is an indispensable protection of our civil liberties, and I don't like to see it chipped away.

On the other hand, it's hard to argue with the Chief Justice's statement to the effect that "probable" cause is not metaphysically certain cause. As long as the officer believes in good faith that there is a valid warrant for someone's arrest, then I agree with the Chief Justice that he has "probable cause" to effect the arrest, which in turn triggers the right to search the subject incident to that arrest.

But in a state in which one out of every nine people has an outstanding warrant, and in a state with a demonstrated history of doing such a poor job of keeping accurate crime records, you'd have to say that in Texas at least, the exclusionary rule has just taken a shot to the gut. And the state has been given no inducement to clean up its act.

MORE: See a New York Post column from Instapundit Glenn Reynolds criticizing the SCOTUS decision, declaring, "Being a 'public servant,' apparently, means being free to make the kind of mistakes that the rest of us aren't allowed. "

Dallas eyewitness study delayed

This is a disappointment: The Dallas Police Department waited so long to begin a study on its eyewitness ID procedures that the Urban Institute, which was supposed to conduct the study, had its grant expire and cannot now fund the long-awaited research.

The truth is, Dallas doesn't need a study to improve it's eyewitness ID policies; other agencies have reformed their methods without some expensive study. They should do so, ASAP.

Bexar, Collin probation departments thumb noses at state diversion goals

The main reason Texas does not currently face a prison overcrowding crisis right now has been the implementation over the last two sessions of new diversion programs at local probation departments aimed at reducing felony revocations.

Most local probation departments that received new diversion funding have seen their felony revocation rates decline significantly, according to an analysis by the Texas Department of Criminal Justice (pdf), but three counties receiving grants saw increases in revocations (p. 20):

• Bexar: 79.9%
• Nueces: 10.7%
• Collin: 91.6%

Collin and Bexar's numbers, in particular, are as disgraceful as they are untenable. At this point, if they don't improve immediately, the state should take away their grant money.

I don't know why the Bexar County judges keep probation chief Bill Fitzgerald around at this point. Not only has he alienated the bulk of his employees, he's doing an incredibly poor job running the agency as measured by these outcomes. His probationers simply are less successful now than they've been in the past, and that makes everyone in San Antonio less safe.

Other large jurisdictions did much better - both Dallas and Harris Counties saw a double digit decline, and Travis County, which reported no decline in revocations last year, this time around improved their performance and reduced them by nearly 20%

We also discover from this report that caseloads declined and the number of early discharges from probation increased overall thanks to 2007 funding and changes in the law.

Still, I was interested to learn how rapidly the number of probationers is growing statewide given that crime overall is declining. The number of new probation placements in 2008 was 7.7% higher than the statewide number 2005, TDCJ reports, with the largest county departments witnessing even greater increases (p. 18). That makes little sense to me: If there's less crime, why are there more placements?

Also, I'm not sure I understand why Dallas County has a much higher number of people on probation than Harris County, which has a larger residential population. Dallas supervised 31,708 probationers in 2008 compared to 24,456 in Harris. What explains that?

These data tell us that diversion funding is working, but also that there's still much to do. Even with reduced revocations, it's troubling that the overall probation population is growing at such a rapid clip at a time when crime is declining. And while most large counties are using new diversion tools, clearly Bexar and Collin in particular need to either be brought to heel or have their funding reduced.

TYC merger compromise?

Reports Mike Ward at the Austin Statesman:

A compromise has emerged in the back-room fight over merging Texas’ juvenile-justice agencies — the embattled Texas Youth Commission and the smoothly run Juvenile Probation Commission.

The idea: leave the agencies separate, but put them under one governing board that could oversee both.

Sens. Bob Deuell, R-Greenville, and Craig Estes, R-Wichita Falls, among other lawmakers, are reportedly shopping the compromise around the Capitol this afternoon, to try for an agreement before the Sunset Advisory Commission meets in the morning.

The Sunset Commission is to vote tomorrow on a staff recommendation to merge the two agencies.

Initial reaction to the compromise is split.

Most lawmakers: Two agencies, two budgets, one board? Won’t work.

Others: Might make sense as a start to combine the two.

See related coverage from Ward on the proposed TYC-TJPC merger and an article from the Victoria Advocate previewing Wednesday's Sunset Commission vote on whether to consolidate the agencies.

MORE: Ward lays out four options facing legislators and predicts some version of a merger is likely.

Austin PD failed to report FBI crime data

According to the AP:

Austin is the only major Texas city which does not have statistics included in an FBI midyear report because police officials did not submit the data, citing a lack of personnel.

Austin police spokeswoman Anna Sabana said Monday that departments are only required to submit crime data — the information is sent to the FBI through the Texas Department of Public Safety — for the annual report, which is generally made public each June.

Sabana said that verifying crime statistics before sending them to the FBI is an involved process and that the department hasn't been able to submit data for midyear reports because of "staffing cutbacks over the past eight years," Sabana said she did not know how many positions have been lost since then.

She said 2008 statistics will be given to the FBI by the deadline in early March.

Grits has previously discussed problems with Texas' crime reporting and that Travis County has the worst record in the state for reporting crime data.

To my knowledge, Austin has faced no officer "staffing cutbacks" over the last 8 years, so in all likelihood what's happened is that massive pay hikes for officers have soaked up funding for civilian personnel responsible for APD data entry - another self-inflicted wound created by irresponsible decisions by the Austin city council.

Expert: Yogurt Shop Case a Prime Example of False Confessions

At a meeting this morning of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, University of San Francisco academic Richard Leo expounded on his research into police interrogations and the causes of false confessions. (See Grits' prior discussions of Leo's work here, here, here, and here.) What follows is a recap from my notes:

False confessions are exceptions, said Leo, not the norm, but they are caused by flaws in policing techniques that make them much more likely to happen. As has been discussed previously on Grits, most police interrogation training in the United States is based on the so-called "Reid method," which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.

Police tactics that encourage false confessions include erroneous behavior analysis and moving too quickly from the "interview" to the "interrogation" phase.

Much of the behavioral analysis taught by Reid and Associates amounts to "faux psychology," said Leo, about how guilty and innocent people behave that doesn't stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become "human lie detectors," but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

To be clear: A police interview is a relatively non-confrontational, information gathering process, where police are trained only to use interrogation methods on those they believe are guilty. Interrogation is a "guilt presumptive" process in which officers may lie, yell, intimidate, threaten, offer inducements, or otherwise manipulate suspects to secure a confession.

Leo insisted that police interrogation tactics are the primary cause of false confessions, but thinks that a secondary cause has to do with individual personality types. At risk individuals include juveniles, the mentally retarded, the mentally ill, people who are highly suggestible or compliant, or who have poor memory or high anxiety.

Most false confessors, he said, are "mentally normal" individuals, but those in a risk group are more likely to falsely confess.

There are three types of false confessors, said Leo: Voluntary, Compliant, and Persuaded. To use a current, local example, all three of these false confession types were in play in Austin's Yogurt Shop murders.

Voluntary false confessions typically occur in high profile cases when people come forward of their own volition to confess to the crime. This is a surprisingly common phenomenon -in Austin's Yogurt shop murders, some 50 different people confessed to the crime.

A "compliant" confesson occurs when a suspect confesses at the end of a long, grueling interrogation in order to put an end to the stress and make the interrogation stop. In the Yogurt Shop case, the confession offered by defendant Robert Springsteen falls into this category, he said.

The "persuaded" confessor actually comes to temporarily believe, or at least accept, that they must have committed the crime even when they really didn't. Leo said that Michael Scott's confession in the Yogurt Shop case is a classic example of this, and that he believes Scott is actually innocent with "every bone in my body."

Quite a few "persuaded" confessors have had their convictions overturned by DNA evidence, said Leo, pointing out that DNA evidence failed to corroborate Scott and Springsteen's Yogurt Shop confessions.

In summary, Leo says there are three basic "pathways to false confessions." Police may make "misclassification" errors in which officers misjudge guilt on the front end and mistakenly initiate interrogations. They might make a "coercion" error in which psychological manipulation techniques backfire and intimidate innocent suspects to confess. And police also can make a "contamination" error, in which they inadvertently feed suspects information that later fills out the details of a confession, but which came from the officer, not the defendant.

When it comes to public policy reforms to prevent false confessions, Leo thinks recording interrogations is the best available tool. Generally, he said, police tend to oppose recording interrogations on the front end, but once they've fully implemented the practice, "they love it." While some false confessions still occur when they're recorded (like Scott and Springsteen's), recording creates a reviewable record, eliminates "swearing contests" about what was said in the interrogation room, and protects police from false allegations of misconduct.

Ten states already require recording interrogations, he said. In two of them - Minnesota and Alaska - courts issued the requirement, while elsewhere it was enacted through legislation. Wisconsin's statute, said Leo, is the best version currently available and should be considered a model.

Some states require recording in all felonies, some only for homicides, and the Wisconsin legislation allows exceptions for field interviews and when exigent circumstances prevent recording.

Rep. Jim McReynolds asked about funding, to which Leo replied that this is an often-raised concern by police but their objections can be easily overcome. These days recording is "not super expensive," he said, and digital storage has become especially cheap.

What's more, recording saves the state money at future points in the process, though such savings won't necessarily accrue to the police budget. Overall, recording more than makes up for the minimalist expense by saving time in the courts, mostly because it facilitates plea bargains and reduces haggling over whether confessions are admitted. The recording expenditure more than pays for itself when you consider how much it costs to pay lawyers, judges, bailiffs, etc., for suppression hearings.

While Leo said recording interrogations would be his top recommendation for reducing false confessions, he mentioned several other approaches worth recording here:

• Expanded police training on the causes of false confessions and how to avoid them.
• Create a post-confession review team when a confessor falls in an at-risk group
• Jury instructions where confessions are the primary evidence.
• Allowing expert witnesses in court to dispute confessions.

Those last two on the list are Leo's least recommended options, he said, because they occur so late in the process the damage has mostly been done. He preferred approaches that might catch or prevent false confessions earlier in the process, long before the defendant ever gets to trial.

BLOGVERSATION: From Simple Justice, "The Bricks that Build a False Confession." See also coverage of Leo's talk from the Stand Down Texas blog.

Dallas PD finally launching study of sequential, blind photo lineups

I'd somehow missed a story published in the Dallas News on New Year's Day announcing that the Dallas Police Department is finally beginning its long-awaited study of "sequential, blind" eyewitness ID practices ("After 2 years of delays, study of photo lineups set to start," Jan. 1). Reported the News:

Misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989.

The Dallas Police Department, the arresting agency in 13 of the 19 Dallas County exonerations, hopes the study will help determine the best method to keep witnesses from making the wrong choices in a photo lineup.

"We hope to determine what is the best practice and implement policies accordingly," Dallas Police Assistant Chief Ron Waldrop said.

Dallas would become just the eighth police agency in Texas – including Richardson, Lewisville and Haltom City, locally – to use the sequential blind lineup, according to a survey by nonprofit reform group The Justice Project.

Richardson police began using sequential blind lineups after the city had a DNA exoneration in April. Thomas McGowan was incorrectly selected from a simultaneous lineup after a woman was sexually assaulted. He served 22 years in prison after being wrongly convicted in the 1985 burglary and rape.

DPD had earlier announced it would change its policy on "showups" thanks to concerns about misidentification.