Getting creative on polygamy prosecution

It being Mother's Day, let's turn our attention to the legislative aftermath of the 2008 Great Eldorado Polygamist Roundup, where more than 400 children were taken from their parents at a West Texas ranch run by a polygamous Mormon sect, the Fundamentalist Latter Day Saints (FLDS).

This time last year, FLDS children were separated from their mothers based on a creative legal ruling that the parents' religious beliefs constituted per se abuse; appellate courts later overturned those interpretations and ordered the children's return. Now the Texas Legislature is flexing its own creative muscles trying to salvage prosecutions from this fiasco.

Legislation to lengthen the statute of limitations on bigamy passed the Senate and will be heard this week in the House Criminal Jurisprudence Committee. Apparently, since authorities couldn't prosecute polygamists at the YFZ Ranch in West Texas as they'd prefer, they now want to give prosecutors up to seven years to pursue bigamy cases, ten if they involve a minor (although no victims are clamoring for prosecutions). The current statute of limitations for bigamy is just three years, as is the case for most felonies.

A different House committee already heard related but much broader legislation that has not moved nearly so far along in the process, so if this gets to the floor, I'd expect Reps Harvey Hildebran and Drew Darby to try to load it up with all the extra mischief in their bill. Sometimes you really have to get creative if you want to use the force of the state to impose your personal moral code on others but can't figure out how to do so within the constraints of their constitutional rights.

The blogger at Sore Toes and a Bleeding Heart yesterday blogged about the creative lawmaking that changed Texas' marital laws in 2005 to target polygamous Mormons who'd recently moved to West Texas. "Toes" pulled the money quote of the hearing from state Rep. Harvey Hildebran, who told the committee that any abuse report "has to come from inside, so we’ve got to be a little bit more creative in how we get the report."

Given what transpired after that, with more than 400 children seized on the basis of a hoax phone call, this is one of those quotes that makes you go, "Hmmmm." After all, the search warrant on which the raid was based was full of official "creativity."

Over at The Common Room, the Headmistress Zookeper further analyzes details from the original affidavit used to obtain the YFZ search warrant, noting that we now know a worker at a women's shelter suggested the name "Dale Barlow" to Rozita Swinton, the hoax phone caller (who claimed she'd been married three years but didn't know the name of her husband), after finding it on an Internet search while they were talking. The Headmistress also points out that Rozita's claim to have been treated at the local hospital was checked out by the Texas Rangers before the raid but couldn't be confirmed.

"There doesn't seem to have been any single identifying information in Ranger Brooks' application for a search warrant that he or somebody else didn't find via googling," she concludes. In other words, as Grits first suggested three days after the raid, the Great Eldorado Polygamist Roundup was a "setup job."

None of this inspires confidence. What's needed at this point to reestablish trust in the system are fewer "creative" efforts and more respect for the law and individual rights by Texas' political leadership.

More media focus on Tim Cole's posthumous exoneration

CBS Evening News will air a story on Timothy Cole's false conviction and posthumous exoneration tonight, Saturday, May 9^th, at 5:30pm CST. Check local listings on your CBS local station. (UPDATE: Here's the link.)

See also a Mother's Day themed editorial in the San Antonio Express News on the Tim Cole case, in which the author writes, "Texans ought to be outraged enough by what happened to Cole to take a hard look at the state's criminal justice system and take tangible steps to assure that justice, not convenient convictions, is sought at every turn."

RELATED: When Dallas DNA exoneree Johnnie Lindsey appeared last week on the daytime TV show The View, he said he and his fiance' weren't getting married yet because he couldn't find a job. The Dallas News' Crime Blog reports that since then he's received three different job offers. Congratultions, Johnnie!

AND MORE: Rounding out the current media flurry regarding false convictions in Texas, Radley Balko at Reason reviews the new movie, American Violet, and discusses the TV series Dallas DNA.

'Writ Writer' film wins ABA award

Congratulations to Susanne Mason for winning a "Silver Gavel" award from the American Bar Association for her documentary film, "Writ Writer," chronicling the history of Texas prison inmate and famed jailhouse barrister, the late Fred Cruz. The film aired on PBS' award winning Independent Lens series and earlier this year was screened at the Texas capitol.

Legislature 'picking on kids'?

Christy Hoppe at the Dallas News last week noticed a trend at the Texas Legislature of the Lege injecting itself in the role of parent ("Are proposed laws at the Texas Legislature picking on kids?," May 3):

Lawmakers don't want kids driving after 10 p.m., buying cigarettes or climbing into tanning beds. ...

Teenagers appear to be a target for lawmakers this year; everyone knows they need protection from their own self-destructiveness, and they can't vote. Lawmakers cite safety issues, but a few, such as [Jodie] Laubenberg, are starting to raise questions about parental rights as several measures move through the Legislature.

They include a number of restrictions on drivers under 18, including no text messaging or talking on cellphones without a hands-free device. Legislators also apparently believe that no good can come after 10 p.m. They propose that those 17 or younger shouldn't be driving after that hour – a change from the current midnight curfew.

"None of us would want to target any age group, but 17 and younger are inexperienced and still developing judgment and are prone to danger," said Sen. John Carona, R-Dallas, whose bill with the 10 p.m. curfew has cleared the Senate and is pending in the House.

"The Legislature continues to try and find the appropriate balance between good policies and parenting," Carona said. "Government couldn't and shouldn't try to raise their kids, but where and when we can, we should find appropriate measures to protect them."

House Transportation Committee Chairman Joe Pickett, D-El Paso, said he favors the restrictions on driving while texting or phoning for young motorists, although he's not sure the earlier curfew is going to win House support.

"While I know it's like we're attacking young people, it's really helping them," Pickett said. "It's not that we want to be restrictive."

Pickett's last comment sums it up, doesn't it? It reminds me of Ronald Reagan's famous quip that the scariest words in the English language are "I'm from the government and I'm here to help." Pickett is certainly right that it's "like" they're "attacking young people." That's how the young people see it, no doubt, and perhaps also their parents whose decisions are being usurped.

One recalls that when the United States attacked Iraq, President Bush said we were "helping" them, too. (Note to policymakers: "Helping" and "attacking" are not synonyms!)

Why it should be up to the government and not their parents whether a teen wears a cowboy hat or a helmet in a rodeo or uses a tanning bed is beyond me. As with many new laws passed each session, much of this falls under the heading (in my book, anyway) of "none of the government's damn business."

Guilty plea from corrupt border Sheriff

Updating a story covered here on Grits last fall, StoptheDrugWar.org brings this news from a high-profile South Texas corruption case:

In San Antonio, a former Starr County sheriff pleaded guilty last Friday to one drug trafficking charge for assisting the Mexican Gulf Cartel as it smuggled drugs through his border county. Former Sheriff Reymundo "Rey" Guerra was arrested last October after he was one of 29 people indicted by a federal grand jury. He admitted passing information to an informant whom he knew had gone back to work for the cartel in return for payments of $2,000 to $3,000. He also admitted passing information about who tipped off authorities in a raid that resulted in the seizure of 314 kilos of pot and one kilo of cocaine. Guerra pleaded to one count of conspiracy to distribute narcotics as part of a plea deal that saw two other charges dropped. He faces from 10 years to life in prison when sentenced in July. Until then, he remains free on bond.

Austin PD to create eyewitness ID policy

The stories of dozens of innocent men falsely convicted by mistaken victims and eyewitnesses in photo lineups are beginning to spur law enforcement to become more professional in this area.

The Texas Legislature is responding - legislation to require law enforcement agencies to have written eyewitness ID policies yesterday passed out of the House Criminal Jurisprudence Committee after already clearing the Senate. Now, Austin PD is taking the hint and creating a written policy on their own without waiting for legislative prompting. The Travis County Sheriff may follow suit, reports the Austin Statesman ("Austin police developing photo lineup policies," May 8):

Austin police officials said detectives use photo lineups dozens of times each month in cases that include homicides, sexual assaults and burglaries. Investigators use live lineups less frequently, although the department has written policies for how to do so.

Austin police Lt. Mark Spangler, who is charge of drafting the new policy, said detectives have historically relied on techniques used by previous investigators that have been passed from generation to generation.

Under those procedures, a lead investigator working on the case generally compiles a photo lineup involving the suspect and five others who have similar physical characteristics. In most instances, Spangler said, that same investigator also administers the lineup to victims or witnesses.

Spangler said the new policies probably will require that an investigator not associated with the case administer the lineup.

Austin defense attorney Bill Hines said he commends the police effort to adopt photo lineup policies. However, he said he thinks it is "embarrassing and shameful that they are only now coming into modern criminal jurisprudence."

These are important changes. The policy also needs to require that the witness be warned that the suspect may not be in the lineup, and that a failure to make an ID will not end the investigation. Investigators conducting lineups should also record a "confidence statement" from the witness declaring how sure they are of the identification in their own words.

Earlier this year Dallas PD decided to reform their lineup policies, mandating "blind administration" of lineups and that pictures be shown to a witness sequentially instead of as a group - a practice which further reduces chances of error.

Edwin Colfax of the Justice Project, who has authored an excellent public policy report (pdf) analyzing eyewitness ID policies at Texas police agencies, likes to say that eyewitness ID evidence should be considered more like "trace evidence" than some sort of evidentiary gold standard, and like other trace evidence, if not gathered carefully using correct procedures can become tainted, discriminatory and unusable.

Kudos for Austin PD for taking the initiative before the Lege forced them to do it.

See related Grits posts:

• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures
• Eyewitnesses in staged test only 8% accurate
• When eyewitnesses are wrong
  
• Exonerations educate courts, Lege on innocence
  
• 5th Harris County DNA exoneration an indictment of eyewitness IDs
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Emotional pair of DNA exonerations argue for changing eyewitness ID procedures
• CCA Integrity Unit: Eyewitness ID reform should be top innocence priority

Harris Sheriff can't spend stimulus money on guns and gadgets

The infusion of federal stimulus money for law enforcement purposes raises significant questions about oversight of those funds and how best to spend them, so I'm glad to see the Harris County Commissioners Court setting the proper tone by rejecting proposals from the new county Sheriff to buy the department machine guns and lease a helicopter. According to the Houston Chronicle ("Harris County cuts Sheriff's wish list," May 5) :

The Harris County Commissioners Court on Tuesday tossed out almost all of Sheriff Adrian Garcia’s requests for federal stimulus funding, instead allocating his office $6.2 million for electronic inmate medical records.

The court balked at Garcia’s original plan to spend $6.6 million leasing a helicopter and another $550,000 buying equipment, including a covert surveillance van and machine guns for boats patrolling the Houston Ship Channel.

The sheriff’s revised proposal included a scaled-back helicopter program, but called for spending most of the money on computer systems to better manage inmates and jailers. Just $1.5 million would have gone toward electronic medical records under that plan.

That was a smart move by Harris County Commissioners. I'm glad to see somebody in Houston has figured out that job one for the Sheriff is running an overcrowded jail with 10,000 inmates. Fixing the jail's inmate record systems is a much more pressing concern than buying fancy surveillance equipment or adding machine guns to patrol boats in the harbor.

All over the state, counties are making similar decisions right now about what to do with federal stimulus money, and my guess is we'll see a lot of it squandered buying guns and gadgets instead of spending it on fundamentals. That would be a waste and a shame.

Larger cities may get needle exchange option

Excellent news! SB 188 - authorizing local-control needle exchange programs in Texas' largest cities and counties - passed out of the House Public Health Committee this afternoon on a 7-3 vote! Outstanding!

Voting in favor of the legislation, according to the needle-exchange focused blog, Sifting the Haystack, were: Garnet Coleman, John E. Davis, Veronica Gonzales, Susan King (a professional nurse), Elliott Naishtat, Vicki Truitt, and Doctor John Zerwas. Three of those - Davis, Truitt and Zerwas - are pickups from the House floor vote in 2007 that authorized a pilot needle exchange program in San Antonio.

Now SB 188 heads to the Calendars Committee, where I'm pleased to see that the Chairman, Brian McCall, was actually one of the authors of a companion needle exchange bill - HB 272 by Ortiz. That makes me optimistic SB 188 will get a vote on the House floor. Once there, SB 188 stands an excellent chance of passage. The Bexar County pilot last session passed on a 71-60 vote, so many members have already gone on the record in favor of the idea.

RELATED: Needle exchange, treatment and prevention.

Florida passes compromised snitching reforms

While legislation in Texas is moving along to protect innocent defendants by requiring corroboration to obtain a conviction based on testimony from jailhouse informants, Florida's GOP Governor Charlie Crist just signed a bill (discussed here on Grits previously) to protect the rights of informants themselves. According to the Tampa Bay Times:

The legislation is named for Rachel Hoffman, a Florida State University grad who was murdered while on an undercover drug buy for Tallahassee police a year ago today. ...

"Rachel's Law" calls on agencies to take into account a person's age and maturity, emotional state and the level of risk a mission would entail. Police also would be barred from promising an informer more lenient treatment; only prosecutors and judges can do that.

Not included are several provisions [Rachel] Hoffman's parents said could have prevented their daughter's death, including barring anyone in a drug treatment program, as 23-year-old Rachel was, from going on undercover drug buys. (more background here)

"This bill represents a great consensus," Crist said, flanked by the bill sponsors, Rep. Peter Nehr and Sen. Mike Fasano. "It’s probably not everything everybody wants. But it’s an awful lot of what is good and right and just about making sure that people are more safe."

There are a lot of questionable and disturbing aspects of informant use and it's interesting to see two large, southern states addressing different parts of the problem simultaneously. Maybe in two years here in Texas we can come back to address some of the problems they were confronting this time around in the Sunshine state.

Here's the text of the enrolled version of the Florida bill. My favorite part: Law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant."

However, while establishing a number of new protections, the bill also includes a disappointing caveat that "any failure to abide by the act does not create any additional right enforceable by a defendant in a criminal proceeding." (In essence they had to make the same compromise to pass the bill as was made on Texas' eyewitness ID legislation, which in its current form specifically exempts failure to abide by eyewitness ID procedures from falling under state's statutory exclusionary rule.) I'm not sure exactly how that would work if a defendant is denied the right to counsel before entering a snitch agreement, as now required in Florida law.

Florida's snitch-protection legislation passed unanimously in both chambers. Watered down or not, the fact that it passed and was signed by the Governor in a GOP-controlled state reinforces my sense that the issue of informant-based corruption of the justice system has sturdy, bipartisan legs.

BLOGVERSATION: At the South Carolina Criminal Defense Blog, Bobby Frederick writes:

If a person is trying to get clean or stay clean, they cannot repeatedly go into houses and make drug deals - sooner or later they will use and their recovery will be blown to bits. Many narcotics officers do not care if you stay clean or not - you are a tool that they use to do their job for them. Many narcotics officers do not care that you are placing yourself in danger - again, you are a tool that they require to make drug arrests. Rachel Hoffman's death in Florida, although tragic, was representative of the ethics problems that narcotics officers often ignore in their work and thankfully brought national attention to the problem.

Counties seek help on jail crowding, diversion

Two stories today related to county jail overcrowding caught my eye:

In my hometown of Tyler, Smith County officials have decided to forego a fourth vote on a new jail for the time being, with County Judge Joel Baker declaring, "Now is not the best time to bring up the bond option, so we have to find other ways to stop the bleeding."

That's good news. Jail proponents got their butts whipped in Smith County elections three years running, so it's definitely time they gave it a rest.

There ARE ways for Smith and other counties with overcrowding problems to reduce the "bleeding," though, if courts and jails utilize more diversion programs, focusing use of the jail more on safety concerns and less on money making ventures.

Meanwhile, the Dallas News today has an editorial about their jail's problems calling for the creation of a new position at the Texas Commission on Jail Standards to consult with counties about jail diversion. The paper opined that an independent view would be more constructive than a consultant beholden to the commissioners court who might tell them whatever they want to hear. (I tend to agree, though I think TCJS might need to be budgeted more than one person for that role if they're going to cover the entire state.)

The opinion piece was timed to coincide with a TCJS meeting in Austin today. Wrote the Dallas News editorial board:

The immediate problem is today in Austin, where several Dallas County officials will attempt to convince the jail commission board that they're doing all they can to reach compliance.

In immediate jeopardy is a 15-year-old variance that allows the county to exceed bed limits in the jail tower with serious, persistent fire-safety problems. If the board isn't convinced, it could order the county to move about 900 inmates out of the North Tower. County Judge Jim Foster estimates the cost at $4 million a month.

"They're tired of being told what we're doing," he says. "They want results."

Our suggestion is that they get behind Munoz's program specialist plan, which so far has survived the budget knives. If county commissioners want to add another consultant on top of that, fine. As many fresh eyes as possible for an increasingly tired problem.

RELATED: Here's a list of the 5 counties currently sending the most overflow inmates to other jails and private contractors:

• Harris: 1,021 inmates
  
• Fort Bend: 314
• Lubbock: 234
• Smith: 148
• Bexar: 76

Much of this results from choices by elected officials, not capacity shortages. All but one of these counties incarcerates its citizens at higher rates than the statewide average:

• Harris: 3.11 per 1,000
• Fort Bend: 2.20
• Lubbock: 3.74
• Smith: 4.22
• Bexar: 2.87
• Statewide: 2.63

Tenaha becoming poster child for asset-forfeiture abuses

Last night when laying out Sen. John Whitmire's SB 1529 regulating asset forfeiture, House Criminal Jurisprudence Committee Chairman Pete Gallego said he was sending a DVD to committee members with this story from CNN's Anderson Cooper 360 about Tenaha, a small town in East Texas that allegedly decided ripping off drivers passing through town was easier than raising taxes.

Key to ending the practice in Tenaha, the legislation would forbid police or prosecutors from requesting, requiring, or in any manner inducing defendants to waive their property interests until a formal civil foreiture case has been filed in a district court. Hopefully that will at least slow down the highway robbery mentality that appears to have infected some Texas jurisdictions when it comes to asset forfiture.

See related Grits posts:

• Reining in asset forfeiture abuses
  
• DA's overreliance on asset forfeiture violates the law
• Take the profit motive out of asset forfeiture
• Senate committee: Asset forfeiture too often a profit-making venture
• Outgoing Sheriff went on forfeiture-backed spending spree
  
• Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
• Asset forfeiture funds may get more accountability, money diverted to drug courts
• Levin: Assets seized from criminals shouldn't become political slush fund
• What's the difference between a pirate and a privateer?

Innocence legislation wending through process

It's the time of year at the Texas capitol that bills are dying left and right because they can't make it through the process in time. Bills originating in the House of Representatives, for example, are dead if they do not pass out of committee by Monday May 11 and the final House floor calendar including House bills (excepting local and consent) will be issued the next day. As such, there's a great deal of anxiety right now under the pink dome.

Fortunately, quite a bit of legislation I've been working on for the Innocence Project of Texas is still alive and variously wending its way through the process. I spent a long, grueling day a the capitol yesterday waiting for the House of Representatives to adjourn so the Criminal Jurisprudence Committee could hear several pieces of innocence-related legislation at a hearing that didn't start until 10 p.m.:

• SB 116 by Ellis/Farrar which promotes recording custodial interrogations
• SB 1976 by Whitmire/Gallego expanding post-conviction writ access in cases with discredited forensics
  
• SB 1681 by Hinojosa/Gallego requiring corroboration for jailhouse informants
• SB 1847 by Hegar/Moody letting exonerated inmates access the same services as parolees when they immediately leave prison.
  

I felt lucky my boss Jeff Blackburn and I made it out of the building before 1 a.m.; the poor folks waiting to hear SB 298 on DWI roadblocks (and there were a bunch of them) had to stay to the bitter end to testify, by all appearances mostly against the bill, though I didn't stay to listen to them (and neither, btw, did the bill sponsor).

Another important innocence-related bill, SB 117 (Ellis/Gallego), has already been heard and is awaiting action by the same committee. It would require law enforcement agencies to have written policies regarding eyewitness identification procedures, a reform that the Court of Criminal Appeals' Criminal Justice Integrity Unit said should be the highest legislative priority for preventing false convictions.

Meanwhile, HB 1736 (Anchia/Duncan), increasing compensation for exonerees, passed out of the Senate State Affairs Committee on Monday and will likely be heard on the Senate floor by the end of the week.

The fact that these bills are all being considered in the second chamber means they've got an excellent chance of passing in some form or fashion, though we won't necessarily know for another few weeks what that final form will be.

What's clear, though, from the support garnered by these bills so far, is that many folks at the Legislature now understand the parade of innocent men walking out of Texas prisons exonerated by DNA evidence should be a wake up call that a broken justice system needs their attention - not just because prisons are expensive but because some of the prisoners in them shouldn't be there.

Jeff Blackburn said it well to the committee last night testifying on SB 1976: The reason we've seen 39 DNA exonerations in Texas is because the Legislature passed a DNA-testing statute in 2001, not because the courts did their job or the system was working well. And it's folly to expect the justice system to improve further without additional legislative action.

Most of this legislation has been scaled back and compromised during the process, and none of these bills is a cure-all: The Lege can't just pass them and then go back to their districts to declare the problem of convicting innocent people "fixed." But I feel like the body - in both chambers - is taking the issue much more seriously this year than at any time in recent memory. As I told the Criminal Jurisprudence Committee (sometime after midnight) last night, I'm thankful for it.

UPDATE: This afternoon (5/7), SB 116, SB 117, SB 1976, and SB 1681 were all voted out of the House Criminal Jurisprudence Committee.

More disapprobation for Shanda Perkins nomination to parole board

I'm not the only one, apparently, dissatisfied with Shanda Perkins' nomination for the Texas Board of Pardons and Parole. Harold Cook at Letters from Texas vents that:

Yesterday, the nomination of Dr. Bryan Shaw came up, to continue as one of three commissioners over the Texas Commission on Environmental Quality.

Most of the Senate Democrats opposed the confirmation, based on the silly notion that the state agency charged with protecting the environment should...well, you know...do a little of that from time to time.

During the course of that debate, Republican Senator Mike Jackson, who chairs the Senate Nominations Committee, the first stop for all these appointees, remarked in defense of Dr. Shaw that the Senate needs to look beyond policy differences, and instead cast their votes based on a particular appointee's qualifications, experience, and expertise.

Fair enough, Chairman Jackson. Let's talk about Shanda Perkins . Ms. Perkins is pending in Jackson 's Nominations Committee, as a Perry appointee to the Texas Board of Pardons and Paroles. Her committee hearing is today.

What are Shanda Perkins' qualifications? Well, she led a revolt against sex toys .

Her holy quest to rid Planet Earth of the scourge of people doing whatever they want in the privacy of their own homes landed one woman in jail, and the whole mess ended up in Federal Court. The courts eventually ruled that Ms. Perkins' goal, and the law that goes with it, is unconstitutionally illegal.

Perkins' only other qualification for appointment by Perry seems to be that she was caught passing out anonymous fliers attacking Senator Kay Bailey Hutchison at Republican events.

So what's it gonna be, Mr. Chairman? Is the talent bar in Texas so low these days that we're going to entrust decisions, regarding who remains in prison and who is set free, to a political hack anti sex toy crusader who is unconcerned with the U.S. Constitution?

The appointment is an embarrassment .

The Senate Nominations Committee will consider Perkins' nomination at a meeting this aftenoon at 1 pm. or 30 minutes after the Senate adjourns in the Senate chamber.

UPDATE: The Senate Nominations Committee approved Perkins' nomination on a 4-1 vote, with Sen. Elliott Shapleigh the lone opponent. Unfair Park broke the news of the committee vote; see also brief coverage from AP.

MORE (5/7): From the Dallas News' Trail Blazers Blog:

When Shapleigh quizzed Perkins and three other Perry appointees to the board about their credentials, the other three cited advanced degrees, years of prison work and experience in state and local government. Perkins cited her experience as a Sunday school teacher and a church youth counselor.

AND MORE: Best coverage yet of the hearing from Jim Vertuno at AP who reports:

The ACLU sent Perry's office a letter Wednesday saying Perkins' has "no relevant qualifications for the position and no identifiable experience in the area of corrections policy" and her nomination should be withdrawn.

Perkins' approval "will fail to promote fairness on the parole board or confidence in the criminal justice system," the letter said.

and also this tidbit:

Shapleigh also asked how she would vote if there was new evidence that could show a death row inmate may be mentally disabled, which would prevent them from being executed.

"I would vote against," execution, Perkins said.

Jeff Blackburn Hagiography

A blogger writing under the nom de plume "Harry Homeless" last month posted a notable hagiography of my boss Jeff Blackburn, the Legal Director at the Innocence Project of Texas (who incidentally will be in town this afternoon to testify on innocence legislation moving at the Lege).

The writer recounts his relationship with Jeff going back to the 1980s when the blogger worked as a contract janitor in Amarillo and he turned to Blackburn during an hilarious dispute with an ex-employer, who was then running for Mayor. The post includes several admiring tales of Blackburn's civil rights work in Amarillo; I've known Jeff for nearly a decade and there was much in this piece I'd never heard. But then, Jeff Blackburn is a man with a lot of war stories so I'm sure for the price of a beer or two he'd be willing to elaborate. ;)

Senate should reject anti-sex toy activist for parole board

The nomination of Shanda Perkins to the parole board - the anti-sex-toy activist chosen by Governor Rick Perry to make decisions about releasing prisoners - comes up tomorrow afternoon in the Senate Nominations Committee. See prior Grits posts for more background:

• Governor appoints anti-sex toy crusader to parole board

• Nomination of anti-sex toy activist to parole board draws more criticism

Perkins' push for harsh enforcement of petty vice laws against her neighbors in Johnson County ultimately resulted in Texas' law banning sex toys being overturned by federal courts. As I wrote when her nomination was announced, "She's so tough on crime, in other words, she's tough on crimes the federal courts say cannot exist because they're acts protected by the First Amendment."

Perkins appears to have no other criminal-justice related background besides her effort to have vibrator sales prosecuted. But there's another reason the Governor might believe (according to his press office) that she's the "most qualified candidate": She's lately been out distributing anonymous attack literature against Kay Bailey Hutchison at Republican Party events.

This nominee should be rejected; Perkins simply doesn't have a background to inspire confidence she'll make wise and judicious decisions on the parole board, and the board is already slanted in its membership and failing to meet its own release guidelines. Adding Perkins to the mix would only exacerbate that problem.

Auditor: TYC not processing abuse complaints quickly enough

The State Auditor's Office today issued a followup report on the Texas Youth Commission's compliance with reforms mandated in 2007. While the SAO found the agency had implemented 72% of reforms suggested in its 2007 audit, they identified several shortcomings:

- TYC did not competitively bid 11 contracts totaling $19.5 million that it awarded while the agency was in conservatorship from March 2007 to October 2008. While the Texas Government Code grants a conservator a series of powers and duties, it does not specifically exempt a conservator from complying with state procurement rules.

- TYC has not increased the number of certified sex offender counselors in its treatment programs or retained necessary documentation to support its staffing projections for juvenile correctional officers for fiscal years 2008 and 2009.

- In fiscal year 2007, TYC proposed closing five residential facilities. As a result, the Legislature reduced TYC's appropriations for fiscal years 2008 and 2009. However, TYC continues to operate the Victory Field Correctional Academy and the West Texas State School, which were two of the facilities that TYC proposed closing. TYC reported it spent $21.8 million during fiscal year 2008 to operate these two facilities.

- TYC did not ensure that its Office of Inspector General (1) received and investigated all reported allegations of mistreatment or (2) initiated and completed investigations of alleged mistreatment within 30 days as required by agency policy.

As for the facility closures, those will be decided in the conference committee on the budget. The House wants to keep them, the Senate wants to close them. The no-bid contracts are an unfortunate legacy of conservators' past, but not anything the current management can do anything about now.

Emily Ramshaw at the Dallas News focused particularly on new data about delays in investigating abuse cases, pointing out that SAO says "TYC took an average of 100 days to complete an abuse or neglect investigation - compared to 57 days in 2006, before the abuse scandal broke. The agency requires them to be complete in 30 days. 'TYC should evaluate whether [it has] the staffing resources necessary to complete investigations within the required time frames,' the report states."

See the full SAO report (pdf).

DPS Colonel ousted

Another nasty black eye for Texas law enforcement: The interim top cop at the Texas Department of Public Safety, Col. Stanley Clark, resigned abruptly over allegations of sexual harassment.

It's hard to ignore how the decision to force out long-time DPS Col. Tommy Davis last year doesn't look quite as clever now as it apparently did to the Public Safety Commission last summer. Col. Davis was a little too independent for the commission's tastes, bucking some of their proposed reorganization efforts, but surely that was preferable to this embarrassment?

Needle exchange, treatment and redemption

Local-control needle exchange legislation, SB 188, sounds like it's in pretty good shape from what I heard of the Texas House Public Health Committee hearing this morning. Rep. Ruth McLendon laid out the bill with an emotional story of personally going into her own district in East San Antonio to distribute needles with a volunteer group (presumably illegally!) and meeting a young man whose family she knew who later went voluntarily into drug treatment.

Chairwoman Lois Kolkhorst had earlier sent the bill to a subcommittee chaired by Rep. Susan King; there's no video in the broadcast archives of their April 16 subcommittee hearing, but it sounds like it was quite a meeting. They produced a committee substitute to include the following changes:

• Includes a preamble written to clarify the purpose of bill (prevent disease and facilitate treatment)
  
• Bracketed the legislation to jurisdictions of 300,000 and above
• Made the bill permissive - no one will be required to have a program
  
• Required programs to have an outreach component promoting drug treatment
  

Kolkhorst said an editorial by Dr. Bill Martin (pdf) in the Houston Chronicle arguing that needle exchange is "the Christian thing to do" had moved her to give the bill a hearing despite initial concerns about the bill. Rep. Susan King, who chaired the subcommittee, was an especially knowledgeable and enthusiastic proponent for the legislation; I hope she'll repeat the performance when it comes up on the House floor because she did a great job arguing the merits of the program.

Reacting to urging from the chair and committee member Dr. John Zerwas, King said the subcommittee added a strong counseling component to the bill, requiring syringe exchange programs to be "one stop shopping" information centers for helping drug addicts access treatment and medical services.

The witnesses began with ministers from St. Mark's in San Antonio and another minister from Austin who gave a faith-based argument for the program. A minister from St. Mark's said Christ ate and sat with sinners, not to condone them but to redeem them. The Austin minister said healing was a central activity of Jesus' own ministry - 72% of Jesus' miraculous activity relates to healing those with physical or mental illness, he said.

I got pulled away on a phone call and soon thereafter the committee recessed to go to the House floor, leaving the bill pending. They'll resume testimony during the House's lunch break around noon. From the sounds of things, though, the subcommittee has come up with a bipartisan compromise on which they can mostly agree. So far, so good.

UPDATE: Here's a link to the archived video of the first part of the hearing. The discussion of SB 188 begins at the 1:00:45 mark. MORE: Here's a link to video of part two of the hearing on SB 188.

A Big Idea for Texas Monthly: Slash Texas' prison system

I neglected to mention that Texas Monthly published a short blurb I wrote in their May "Ideas" issue - the one with Joel Osteen on the cover - touting "82 various and visionary ideas for how to make Texas a better place (Better than it already is, of course, which is pretty darn good)." My piece was in the printed magazine, but here are the ones they published on the web.

When he asked for my contribution, TM editor Jake Silverstein said the idea proposed "should be as daring, unusual, and ambitious as possible (even to extent of being entirely unworkable, so long as it’s a conversation-starter)." So here's what they published from me (at least, after their fact checkers updated the numbers):

Texas should dramatically slash its prison population and eliminate a majority of felony crimes. We have criminalized too many different activities: Texas has 2,324 separate felonies on the books, including 11 involving oysters. From 1978 to 2008, Texas's population increased 80 percent, while the prison population increased 595 percent. If prison growth had matched population growth, around 40,000 would be in Texas prisons today - instead the number is about 155,000. Texas must stop trying to manage every social problem through the justice system and re-empower its civil courts and regulatory functions to handle more conflicts among citizens.

Needle exchange bill reaches milestone Tuesday

Legislation to authorize local-control needle exchange programs will reach a milestone Tuesday when SB 188 finally receives a hearing in the House Public Health committee. The previous chair, Dianne Delisi, had singlehandedly blocked the bill in 2007 after a bipartisan supermajority of senators approved it. But this year's Chair Lois Kolkhorst greenlighted a hearing and promised sponsors the legislation will get a committee vote.

A majority of Public Health Committee members already voted for needle exchange once. The House had a vote in 2007 on an amendment by Rep. McLendon to allow a needle exchange pilot in Bexar County that tells us a lot about the bill's likely reception on committee. Here's how the committee members voted on that 2007 amendment:

Ayes: Naishtat; Coleman; Gonzales; Hopson; McReynolds, King, S;

Nays: Laubenberg, Truitt

Absent: Kolkhorst; Davis, J;

Present not voting: Zerwas

Though Rep. Kolkhorst wasn't there for the 2007 vote, the fact that the chair decided to give the bill a hearing shows she's at least open to the idea, and if she allows the committee to vote on the bill, by this count the votes are there to pass it.

Two other notable, key "aye" votes for needle exchange from 2007 pop out from the list: Calendars Committee Chairman Brian McCall and House Speaker Joe Strauss. That makes me hopeful SB 188 will make it to the House floor for a vote if it clears the Public Health Committee.

Needle exchange isn't a cure all, but it helps at the margins to prevent disease, reduce public health costs and make it more likely program participants access drug treatment. According to a fact sheet from the Texas Department of State Health Services, found via the blog Sifting the Haystack:

• More than 14,000 Texans got HIV when they were injecting drug users.

• About 240,000 cases of hepatitis C in Texas are linked to sharing syringes.

• Preventing 100 new cases of HIV would save $38,000,000 in medical costs.

• Syringe exchange could prevent 100 new cases of HIV per year in Texas.

• A study comparing 81 cities found the HIV infection rate decreased 5.8% per year in cities with SEPs and increased by 5.9% in cities without SEPs.

SB 188 is scheduled for a hearing in the House Public Health Committee on Tuesday, May 5, 2009, at 8:00 AM in E2.012 in the Texas Capitol. Go here to watch it live when once it begins.

See prior, related Grits posts:

• Needle exchange bill sails through Senate, heads to House
  
• Will 2009 be the year Texas approves needle exchange?
  
• Good chances for Texas' needle exchange bill next year, but assume nothing
• Needle exchange gets unexpected 2009 boost
• Bully Bexar DA says she didn't pick needle exchange fight (but she did)
  
• Needle exchange bill pits small government Republicans vs. authoritarian wing
• Texas Senate prescribes voluntary needle exchange
• Wow! Texas House approves pilot needle exchange
• Lone Star Times: Delisi needle exchange stance shows why GOP may lose majority
• Delisi: Research, Smesearch, I don't wanna
• Dr. Deuell prescribes needle exchange legislation

Texas considers eliminating LWOP for juvies, two steps ahead of SCOTUS

Amazingly, for once Texas appears to be ahead of the curve regarding reforms to capital sentencing, with the state Legislature poised to potentially eliminate life without parole entirely for juveniles, even as the US Supreme Court has decided to consider whether to ban the practice for juveniles in non-murder cases.

SCOTUS today agreed to hear two cases out of Florida that will determine the constitutionality of sentencing juveniles in non-murder cases to life without parole (LWOP), Reuters reports:

The nation's high court agreed to hear two Florida cases, one involving a 13-year-old convicted of raping an elderly woman and the other involving a 17-year-old who took part in an armed home-invasion robbery while on probation for an earlier violent crime.

Their lawyers appealed to the Supreme Court and argued that life imprisonment, without the possibility of parole, for juveniles whose crimes did not involve murder violated the Constitution's ban on cruel and unusual punishment.

The Supreme Court in 2005 abolished the death penalty for juveniles.

The justices will consider in the two cases whether to extend that ruling to sentences of life without parole for juveniles convicted of crimes other than murder.

Doc Berman notes that in one of the cases before SCOTUS, a Florida youth sentenced to LWOP was actually sent to prison for a probation violation (!) after earlier committing armed robbery.

Meanwhile, Texas law only authorizes LWOP for juveniles in capital murder cases, but the Texas House Criminal Jurisprudence Committee on Wednesday will consider SB 839 by Hinojosa to eliminate LWOP for juveniles entirely and substitute a 40-year minimum sentence. Most observers believed clearing the Senate was this bill's biggest hurdle and the legislation has an excellent chance of making it through the process and becoming law, thanks in part to assistance from some unlikely supporters.

It's nice, for a change, to feel like our state is one step ahead of SCOTUS on these matters. Perhaps it's possible, just this once, for Texas to adjust our most extreme sentencing practices without first enduring a series of embarrassing scandals and bench slaps from the federal courts.

SCOTUSBlog has the relevant legal materials from the Florida cases.

Declining Houston crime doesn't justify politicized rhetoric

Crime in Houston is substantially down, reports the Houston Chronicle's Bradley Olson ("Houston crime is down but not the fear of it," May 4), but demagoguery by media and politicians about crime is on the rise:

In the words of a statistician, the decrease in criminality appears to have an inverse relationship, at least for now, with political rhetoric on crime, which has ramped up in recent months.

“It’s probably very difficult for any politician to acknowledge that the problem of crime is decreasing, because that undermines the importance of the issue,” said Dennis Longmire, a professor of criminal justice at Sam Houston State University who has studied public attitudes toward crime. “Politicians use a fear of crime to garner support and get voters’ attention.”

Former Houston police chief and Mayor Lee Brown told the paper, “This always happens ... It becomes a political issue, rather than the reality of what a city is going through. It appears to be as if [the politicians] haven’t looked at what the reality is … The objective is to draw attention to themselves and get voters.”

Company associated with chair of white-collar crime panel subject of fraud investigation

Man alive! You can't make up ironies like this one:

The chair of the White Collar Crime Subcommittee of the Texas House Criminal Jurisprudence Committee is affiliated with a company that's been accused of securities fraud by state and federal white-collar crime investigators, Texas Monthly's Nate Blakeslee reports. Nate poses the question thusly: "How does a man like Allen Fletcher, a retired police sergeant who spent years heading a white-collar-crimes unit at the Houston Police Department, find himself in business with a group of alleged con artists?" Ouch!

It's too early to speculate whether placing Fletcher in charge of white collar crime policy amounted to putting a fox in charge of the henhouse: But I'll bet if Chairman Gallego had known this backstory when he made the appointment he would have chosen someone else.

For his part, the freshman Republican "said he was a victim of deception in that case as well and denied any wrongdoing." A federal case against his business partner was later dropped but could be refiled. (Read the full story as my overview here does not do it justice.) For now, I'll take Fletcher at his word that he was involved in no wrongdoing until I see evidence to the contrary.

That said, Nate Blakeslee is the ace reporter who first broke the story about the Tulia drug stings that led to his excellent book-length investigation of the case. He later was first to report about alleged sexual abuse at the Texas Youth Commission that turned that agency on its ear. So when Nate raises a red flag, in my experience, it generally behooves a wise observer to pay attention.

On the Criminal Jurisprudence Committee, Fletcher has seemed like a nice guy with no particular axe to grind. He's at times more thoughtful than some others on the panel but, unsurprisingly for an ex-cop, can also exhibit a greater degree of tunnel vision than I might prefer. (I attribute that to being a freshman; people tend to grow into these jobs.) He's been a consistently conservative vote - pretty much what you'd expect from someone whose political patron is state Sen. Dan Patrick, who donated $68K in radio ads and direct mail services to Fletcher' campaign and whose chief of staff was Fletcher's consultant.

The first time I met Rep. Fletcher earlier this year, before committees had been appointed yet and not long after the legislative session had begun, the first thing he said to me upon learning I worked for the Innocence Project of Texas was that, as a former police officer, he knew that the hardest thing in the world was to undo a false conviction because once someone was wrongly accused, suspicion would forever continue to hang over them. So I want to give him the benefit of the doubt and not presume without evidence that Fletcher knew about his business partners' alleged misdeeds. (Though arrests were made three months before his primary election, Blakeslee reported, the "raid was not reported in the press, and Fletcher was not publicly linked to the investigation.")

However, Fletcher and his partners had a checkered history together and Blakeslee's article at a minimum raises questions about Fletcher's judgment, who he associates with and how he runs his businesses. And there are parts of Blakeslee's story - like an elderly cop friend who loaned Fletcher $50,000 and died without getting it back - that could be immensely damaging if run on a TV ad or via direct mail.

Which is the problem with this story coming out now - AFTER the fellow has been chairing a legislative subcommittee on white-collar crime for two months, for heaven's sake. This is the kind of story you wish the local press or an opponent's campaign had discovered during election season so it could be discussed when voters could do something about it instead of bringing it up at crunch time late in session.

With the number of newspapers and professional reporters in a free fall, increasingly it will fall to political campaigns and parties to vet opposing candidates running for public office because there's no longer an independent institutional player (i.e., a local newspaper) performing the function. Clearly Fletcher's incumbent opponent - Republican Corbin Van Arsdale - didn't invest enough money in opposition research (a business I was in myself for a dozen years and 68 campaigns). This appears to all be stuff they could have found through routine records searches at the Harris and Montgomery courthouses if somebody had bothered to run the traps at the time.

MORE: Rick Casey at the Houston Chronicle has Fletcher's reaction to the Texas Monthly story.

Collin County prosecutors could let CCA off the hook for ethical morass in Charles Hood case

National CBS News last evening covered the Charles Dean Hood case, in which a Collin County prosecutor and judge conducted a secret romantic affair during Hood's capital murder trial. (The judge was later appointed by then-Governor Bush to serve on the Texas Court of Criminal Appeals with 8 of the 9 current members who now must decide whether to give Hood a retrial because of her misconduct.) CBS legal reporter Andrew Cohen offered this suggestion how prosecutors could help the CCA save face:

Now that Judge Brewer has found facts that establish the affair, and the efforts of two sworn public servants to hide it, it’s hard to identify a legal theory upon which Texas or its appellate courts could rely in denying Hood a new trial. Is there a more direct conflict of interest, negating the duty of impartiality and integrity in the criminal justice system, than what Holland and O’Connell did? Would you want to be a defendant in those circumstances? Would you trust the judge’s rulings, or the prosecution’s conduct, or the interaction between the two knowing that your adversary and tribune had been shacking up?

It’s possible, I suppose, that the appellate court could reject Judge Brewer’s legal conclusion that Hood’s attorneys can push this matter further even though all of the relevant events took place 19 years ago. It’s even possible, I suppose, that the appellate court will reject the interpretation Judge Brewer gave to the facts before them. But such poor judgments surely would themselves generate an appeal, and another, and maybe even a Supreme Court review. And before you know it we’ll be five more years down the road without any finality or certainty for Hood or the families of his victims, Tracie Lynn Wallace and Ronald Williamson.

Texas might consider doing here what the Justice Department did in the Ted Stevens corruption case. Faced with evidence of prosecutorial misconduct, the feds simply walked away from the conviction they obtained. Texas wouldn’t need to go nearly that far - no one (except for Hood) is suggesting that he ought to be freed or that he is necessarily an innocent man. All Texas would have to do, saving time and money, is agree now that Hood can and should be tried again before an impartial judge and an honest prosecutor. There appears to be ample evidence suggesting Hood’s culpability.

Texas then could use the money it saves fighting against a new trial for Hood on ensuring that its judicial officials understand what a conflict of interest is, and how it can be avoided, why it’s never okay for a judge and prosecutor to be romantically involved when they are working on the same cases together and why, worst of all, it’s never okay to hide such a material fact from opposing counsel. Hood’s judge and prosecutor lied, over and over again, to hide their affair. Any blame for the delay in bringing justice to Hood is their fault, not his, and Texas would be better off acknowledging that now.

Cohen raises a possibility I hadn't considered. Knowing what we now know, the Collin County DA could simply move to dismiss current charges against Hood in the interest of justice and seek to retry the case in front of a new judge, one who hopefully can contain their libido throughout the proceedings this time. That would be the right thing to do and it would spare the CCA the agonizing quandary they face now.

It would also seem anticlimactic. Part of me would like to see the high court forced to make that decision. If there are CCA members who believe it's okay to execute a man even if the judge and prosecutor were sleeping together during the trial, I want them to put their reasons on the record for history to see, and to judge.

RELATED: Rick Casey from the Houston Chronicle has a column on the case.

Sharon Keller: Out by 2010?

I just put up a reader poll in the sidebar posing the question, "Will Texas Court of Criminal Appeals Presiding Judge Sharon Keller keep her job through the end of the year?" Possible answers are "Yes," "No, she'll be impeached," No, she'll be removed by the Commission on Judicial Conduct," or "No, she'll resign."

Until the House Judiciary and Civil Jurisprudence Committee hearing last week, I would have prognosticated the chances Judge Keller would be impeached were exceedingly slim. Now I'm not so sure. For starters, a GOP committee chairman gave Burnam's resolution a hearing - a signal that concern about the CCA's presiding judge to at least some extent crosses party lines, something that was also evident among committee members at the hearing.

What's more, Burnam vowed to bring a resolution to the floor of the House before the end of the legislative session to impeach Judge Keller, saying that a) it's a "privileged" motion, so the chair can't keep him from making it, and b) the Lege does not need a special "call" by the Governor to consider the matter after the biennial 140 day session ends on sine die. Assuming both things are true, he can probably force a record vote in some form or fashion. If the House votes to impeach, Keller would be temporarily removed until the Senate can hold a trial.

That makes her removal via impeachment at least a within-the-ballpark possibility, even if it's an outside shot. The House is closely divided at 76 Republicans and 74 Democrats. But if Rs start to bolt the stable, it wouldn't take very many to tip the balance, assuming most Dems vote to impeach (which may be, I'll admit, an invalid assumption). In any event, it's not a mathematical impossibility assuming Burnam is actually allowed to make the motion.

The next option - her ouster by the Commission on Judicial Conduct - also appears more likely than I'd have ever predicted. They've initiated formal removal proceedings and appointed a judge who will hold hearings beginning August 17. That looks pretty serious and they might force her removal as part of a settlement in the case.

Retirement would no doubt be the easiest way out - "I'm taking more time to spend with my family," etc, etc. - but something tells me Sharon Keller's not a quitter and I won't be surprised to see her fight it out to the bitter end.

Which leads us to the other option: That she makes it through the end of the year and just sticks out her term through 2012. There's a decent chance the House won't impeach her, after all, and an even better chance the Senate wouldn't convict her. And even if the Commission on Judicial Conduct Commission finds against her, there are remedies available to them (that they may be inclined to use) short of removing Judge Keller from office.

So this question seems like a tossup to me. I can't decide which outcome I think is most likely. Register your opinion in the sidebar poll and use the comments to say why you voted the way you did.

BONUS QUESTION: Since we're speculating, who might Rick Perry appoint to replace her?

The testilying 'Bushmen'

At the Dallas News, Tanya Eiserer had an excellent story this week ("Dallas police officer's testimony may taint dozens of cases," May 2) about Sgt. Randy Sundquist, a Dallas police officer officially branded a liar and banned from testifying in court after an administrative judge overturned his firing in the mid-'90s. But over time, apparently, everyone forgot, and he was promoted to supervise a unit responding to drug complaints - an unimaginably poor judgment to put a known liar in charge of such a unit. Now, dozens of cases in which he participated may be tainted.

Eiserer's story concludes with an especially fascinating account that suggests Sundquist's lying wasn't just malfeasance by a single officer but actually part of a pattern attributed to his entire unit:

In the mid-1990s, Sundquist and other patrol officers were known among prosecutors as the "Bushmen," a reference to the group's fondness for hiding in bushes when conducting surveillance on suspected drug houses in South Dallas.

Colleen Murphy, a prosecutor, testified in Sundquist's 1995 appeal of his firing that some prosecutors didn't want to work with the "Bushmen" because their cases "were just totally unbelievable."

"They'd see amazing things in the middle of the night with no lights, from far distances," she testified.

Internal police investigators found that Sundquist had conducted an illegal search. They also concluded that Sundquist lied to them, finding among other things that he couldn't have seen what he claimed to have seen when he said that a man was standing in a doorway with a bag of cocaine.

"I found numerous flaws in their testimony and very shoddy arrest reports," Sgt. Jose Losoya told internal investigators. "These omissions or flaws could prove disastrous in a court case. As it was, it gave the impression that the officers were falsifying their reports to get drug dealers at all costs."

After he was fired, prosecutors issued the first letter barring him from further court testimony. An administrative law judge subsequently reinstated Sundquist and reduced the punishment to a 40-day suspension. ...

Sundquist then worked in the communications division for about three years, receiving high marks. He eventually returned to patrol duties and was promoted to sergeant in 2002.

Senior police officials say that over time, the squad Sundquist supervised morphed into a de facto narcotics unit, frequently tasked with working drug activity complaints. Commanders instructed them to no longer work such cases earlier this year.

My question: How could anybody with a brain put this guy in charge of a unit working narcotics in 2002, which is the year AFTER the "fake drug" scandal broke at the Dallas PD?

In that egregious case, Dallas' official narcotics unit was caught collaborating with crooked informants who packaged pool chalk faked to look like cocaine in order to to set up illegal immigrants on felony charges. Combined with this tale about the testilying "Bushmen," history is beginning to cast an especially ugly light on Dallas drug enforcement during the mid to late '90s, and Sundquist's advancement in the department provides little evidence they've appointed leaders capable of changing the culture that led to that ugly scandal.

Dallas has released 19 innocent men so far based on DNA evidence, but 24 innocent people were set up in the Dallas "fake drug" scandal, and God knows how many innocent people the "Bushmen" put away.

Oh, THOSE assets: Judge Keller not so poor after all

After pleading poverty and asking the state to pay for her defense counsel in removal proceedings by the Texas Commission on Judicial Conduct, Court of Criminal Appeals Presiding Judge Sharon Keller has revealed $2.4 million in assets she previously had not disclosed in her state ethics filings. Said one wag, "If a defense attorney in a death penalty case before Judge Keller's court filed briefs as carelessly as Keller filed her financials, the client in question already would have been executed." Ain't that the truth?

The Guessing Game

Watching an old movie with the missus this evening, this line made me laugh out loud:

"Without the facts, the science of criminal investigation is nothing more than a guessing game."

- Inspector Clouseau, The Pink Panther, "A Shot in the Dark," 1964

Indeed. :)

Sex parte: Coverup of judicial tryst tests CCA's ethical mettle

March and April were both memorably bad months for the Texas Court of Criminal Appeals, with the Commission on Judicial Conduct initiating removal proceedings against Presiding Judge Sharon Keller followed by the House of Representatives considering a resolution to impeach her. Unfortunately, the month of May didn't start off any better for Texas' high criminal court.

A state district judge ruled yesterday that death row inmate Charles Dean Hood did not wait too long to raise the issue that the judge and the prosecutor in his case were having an affair during his capital murder trial 19 years ago, setting the stage for the Court of Criminal Appeals to revisit misconduct allegations against one of its own former members. Judge Verla Sue Holland (pictured) was the trial judge in Hood's case and was later appointed to Texas' high criminal court where she served with 8 of the current members. According to the Plano Courier-Star ("Judge deems death row inmate did not receive a fair trial because of sex scandal," May 2), Judge Greg Brewer yesterday:

issued Findings of Fact and Conclusions of Law that concludes that attorneys for Hood discovered proof of Judge Vera Sue Holland and District Attorney Tom O’Connell’s secret, sexual relationship in a timely fashion and that Hood’s attorney are not at fault for not discovering this information earlier because the parties kept it secret for so long.

In his recommendation to the CCA, Brewer determined Hood should be able to raise judicial bias claims and that the affair between the judge and the district attorney violated his right to a fair trial.

Brewer found that Holland and O’Connell did not abide by their ethical and constitutional duties during the 1990 trial and conviction of Hood.

According to court records, Brewer states: “Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret,” and “Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.”

In attempts to keep their affair secret, Brewer states “Mr. O’Connell misled habeas counsel during the successive state habeas proceedings and Judge Holland resisted counsel’s investigative efforts.”

The Findings of Fact and Conclusions of Law that Brewer made will now be sent up to the CCA for their review, where they can either accept or reject Brewer’s recommendations. According to Andrea Keilen, Texas Defender Service executive director, the CCA will either grant a new trial or find they are not bound by the trial-court recommendation.

I think Brewer made the right call: The judge and the DA had an ethical duty to disclose their misconduct and were playing hide-the-ball, so the defendant shouldn't be penalized for not knowing about the affair or not being able to prove it earlier.

Brewer's decision drops the whole mess right back in the lap of the Court of Criminal Appeals, which has done everything in its power so far to avoid directly ruling on their former colleague's ethical lapses. According to the Dallas News ("Old love affair gives death row inmate a new chance in 1989 murder case," May 2):

In his ruling, Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.

"Judge Holland and Mr. O'Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship," the judge wrote.

Attorneys for Hood were unavailable for comment; assistant district attorney John Rolater declined to comment, citing pending litigation.

The case goes back to the court of criminal appeals for consideration on the judicial bias claim.

The court still is considering the other claim: that jurors were given contradictory instructions regarding mitigating circumstances, such as Hood's family background or childhood abuse, when considering the death penalty.

The CCA stayed Hood's execution based on the mitigation claim, not Judge Holland's affair, but that only bought the court time. Now the CCA must directly rule whether Judge Holland's misconduct justifies a new trial, which puts them in a particularly awkward spot.

Either they must publicly rule that someone most of them served with on the court is an unethical jurist who committed about the most egregious misconduct imaginable, or they must issue a public ruling that says a tryst between a judge and prosecutor during trial doesn't invalidate the results. Pick your embarrassment, in other words: Either admit you shared the bench for years with a grossly unethical colleague or issue a CYA ruling that would make the court even more of a national laughingstock than is currently the case.

The worst part: Charles Hood is as guilty as homemade sin. But the victim's family and friends now may have to endure a new trial as a direct result of misconduct by the prosecutor and trial judge. There's nobody else to blame: It's not like the pair didn't know what they were doing was wrong at the time it happened.

This case has become perhaps the most severe test imaginable of the Court of Criminal Appeal's ethical mettle - a test that so far they've miserably failed. In many ways it poses more of an embarrassment, even, than Judge Keller's "We close at 5" imbroglio because so many members of the court were colleagues of Judge Holland, so it will look like they're all protecting her if they don't go along with Judge Brewer's findings and give Hood a new trial.

If I were a betting man, I'd wager this will be a 5-4 ruling, but it's a tossup which way they'll go.

MORE: See Judge Brewer's findings - good stuff. He performed a thorough, credible review, which at this point is exactly what the public needed to see from the judiciary in this case. Now we'll see if the same can be said for how the CCA receives his findings.

ALSO: See coverage from the ABA Journal.

TDCJ closing visitation this weekend over swine flu

This notice has been place at the top of the Texas Department of Criminal Justice website regarding visitation this weekend:

As a preventive measure, the Texas Department of Criminal Justice is canceling visitation at all facilities for the weekend of May 2 – 3, 2009. Also, all programs that include visitors will be canceled for the weekend of May 2 – 3, 2009.

Further advisories regarding visitation shall be provided prior to visitation next weekend.

What is TDCJ doing about H1N1 (swine) Flu?

40% of Criminal Jurisprudence bills boost criminal penalties

As has probably been the case every legislative session in living memory, bills boosting criminal penalties account for a lion's share of legislation coming out of the Texas House Criminal Jurisprudence Committee this year. According to Emily Ramshaw at the Dallas News ("Texas legislature cranking out a variety of stiffer penalties for obscure crimes," May 1), "Of the more than 100 bills the House Criminal Jurisprudence Committee has endorsed this session, roughly 40 percent strengthen penalties for crimes or tighten restrictions on criminal offenders."

I was quoted in the story: "These are easy bills to pass," said Scott Henson, a criminal justice expert turned public policy blogger. "No one can say, 'I'm for stealing air conditioners.' "

The article also quotes two senior Democrats who strongly disagree over the direction of the committee on enhancements, and while I respect each man immensely, I must say I disagree with both of them:

Rep. Pete Gallego, who chairs the Criminal Jurisprudence Committee, said there will always be some criminal enhancements, from lawmakers who "have an incident in their home district, and want to make sure their folks are protected next time."

But he said these measures are far outweighed by the progressive legislation his committee has endorsed, including bills to ban execution of criminals with mental disabilities, commission a study on the death penalty and broaden mentally ill offenders' insanity defense.

"Texas was once a 'lock 'em up and throw away the key' state," said Gallego, D-Alpine. "That's no longer the case."

Rep. Harold Dutton, D-Houston, couldn't disagree more. During the early 1990s, he said, "Texas was building more prisons than schools." Late that decade, lawmakers changed their strategy, rewriting the penal code to focus on diversion and rehabilitation. Now, Dutton says, Gallego's committee is taking Texas back in time, bowing to attorneys and special interest groups and sending more people to prison.

"Soon we're going to have not just 150,000 prisoners in Texas, we're going to have 250,000," Dutton said. "It's a committee that's hostile to average citizens and plum for prosecutors."

For Chairman Gallego to claim Texas is no longer a lock-em up state strains credulity, though certainly initial steps have been taken to turn the ship. But I think Dutton is wrong, too, that the Criminal Jurisprudence committee has somehow shifted gears to approve more enhancements than in the past.

Under Gallego's leadership the committee has voted out a lot more positive legislation than in 2007 when Criminal Jurisprudence was a virtual killing field for reform legislation and really was under the thumb of the prosecutor lobby. But let's be clear:

One in 22 Texans is still in prison, in jail, on probation or on parole - as many people as live in Washington, D.C. and more people than live in four US states are under control of Texas' criminal justice system at any given time. The number of people actually incarcerated has leveled off but until the sheer volume declines, it borders on absurd to say it's "no longer the case" that we rely too much on incarceration.

Texas has indeed shifted more resources toward prison diversion in recent years, but that's been done through other committees and the Criminal Jurisprudence Committee has simultaneously been working at cross purposes the whole time, continuously creating new felonies and boosting penalties for existing ones even while other legislators worked to limit prison population growth.

It's also worth noting that prosecutors aren't the main source of most so-called "enhancement" bills, special interest groups are. Shannon Edmonds at the Texas District and County Attorneys Association estimates only 3% of so-called "enhancements" are proposed by prosecutors, and in my experience that estimate is about right. As long as I've been watching this committee - under both Democratic and Republican chairmen - the trend of passing dozens of new penalty increases every session has looked very similar.

Who are these special interests? Just about all of them. The goat herders want harsher punishments for theft of a goat. Teachers and school districts want to criminalize disobedient students. The telecom and electric companies want higher penalties for theft of copper wire. Coastal fisherman want to boost penalties for poaching shellfish.

Every part of every code is laden with "enhanced" penalties for narrow special interests, IMO largely because the political class has an exceedingly limited view of government's role and a shortage of good ideas for how to curb behaviors that make us mad or infringe on commercial interests. It's not that special interests don't understand, at some level, that their enhancement bills don't work. After all, they keep having to come back asking for higher penalties year after year.

On the Senate side, Ramshaw's article failed to mention, Criminal Justice Committee Chairman John Whitmire has held the line much more strongly on boosting criminal penalties, largely because in the Senate the same committee is responsible for prison diversion efforts so it's easier to recognize the cognitive dissonance of doing prison reform and penalty hikes at the same time. For his consistent prudence on this matter, the state owes Sen. Whitmire an enormous debt of gratitude: If it were up to the House of Representatives, it's not an exaggeration to guess that perhaps 5 or more times as many new penalty hikes would become law every session.

I should also mention that Emily portrayed my view on the future of enhancements as slightly more pessimistic than is actually the case:

Henson, the former director of the American Civil Liberties Union's Police Accountability Project, said criminal enhancements aren't likely to end – ever – because they're an easy "freebie" for lawmakers. Though sending more people to prison costs the state money, lawmakers don't have to take that into account in their bills. It's how Texas has more than 2,300 felonies on the books, Henson said – 11 of them involving oysters.

"At this point, we've criminalized everything that remotely needs to be criminalized," he said.

My point, though, wasn't that it's impossible to "ever" put an end to the Legislature's enhancement fetish, but that the only way to stop it would be to put an accurate price tag on each new penalty hike.

Traditionally, the Legislative Budget Board tells the Lege that all penalty increases cost nothing and needn't be accounted for in the state budget. If LBB were disallowed from claiming more incarceration is free and there was a rule that every new penalty hike required new money in the state budget, I actually believe much of this foolishness would die down awfully fast.

As I've written before, penalty hikes almost always reflect a lack of imagination about other ways to influence human behavior. Increasing current penalties should be a last resort since it's among the least effective approaches - once something is illegal, after all, making it more illegal won't reduce the number of people who do it much. But usually penalty hikes are the first thing legislators want to do, even though by definition it's an admission that the same strategy (criminalizing the behavior) failed to solve the problem in the first place.