Scott HensonNone of that explains to me why many of those duties aren't redundant with other agencies or why taxpayers wouldn't benefit from streamlining administrative functions and subsuming constables into county sheriffs. Where constables stick to process serving and acting as court functionaries, it's less of a concern. Where they want to establish competing law enforcement agencies alongside the Sheriff and local police departments, to me that improperly pads costs paid by taxpayers and creates too many accountability problems.
Grits for Breakfast
Sent by e-mail
Dear Scott:
Consider this an old-fashioned letter to the editor, regarding your recent on-line question about the abolition of constables in Texas. You should first understand that Texas’ 254 counties are too varied to paint one brush stroke across them all, such as abolition of all constables.
Besides, democracy’s way of weeding out officeholders whose constituents are not happy with them is at the ballot box. Also, commissioners courts may withhold budgets if they believe other officeholders are not doing the job expected.
Constables are constitutionally authorized peace officers who perform a myriad of important law enforcement functions. They are the first link in a county's chain of law enforcement. They have the same arrest powers and duties as city police and sheriffs, along with the added responsibilities of serving as judicial officers and executing civil process for the courts. They subpoena witnesses, act as bailiffs and execute judgments.
In large metropolitan counties, constables may perform patrol functions to alleviate the burdens on other law enforcement agencies. They may make criminal investigations. They may operate truancy programs and disabled parking enforcement. They may be heavily involved in family law services, including serving process in cases of divorce, child support enforcement and domestic violence.
Hence, the conclusion that Texas doesn’t need constables is wrong. It overlooks the significant contributions constables make to the overall effort to reduce the effects of crime in their communities. Constables are important cogs in the law enforcement wheel of Texas, and they need to remain such.
Sincerely,
Elna Christopher
Director of Media Relations
Texas Association of Counties
Austin, Texas
Monday, November 09, 2009
Texas Association of Counties says constables still needed
Here's a dissenting institutional view on constables, received via email:
Hampton challenging Keasler for CCA slot in 2010
Keith Hampton, a veteran appellate lawyer and chair of the legislative committee for the Texas Criminal Defense Laywers Association, has announced his candidacy for the Texas Court of Criminal Appeals, lining up to run against Michael Keasler. Here's Hampton's campaign website.
I've had my differences with Keith but he'd be an overwhelming improvement over Judge Keasler, if only to add some balance to the range of opinions on the court.
Like J.R. Molina in 2006, I predict Hampton will receive more votes than the Democratic candidates for either governor or senator - not because of his own popularity but because the Court of Criminal Appeals is so widely disdained. Whether that will be enough to put Keith over the top depends on big-picture electoral dynamics he likely cannot influence. But at least he'll be in a position - like Craig Watkins in the '06 Dallas DA's race - to capitalize on serendipitous electoral trends if things happen to break just the right way. Dems have a better chance of capturing these seats IMO than they do senator, governor, attorney general, or any of the higher profile races on next year's ballot.
I've had my differences with Keith but he'd be an overwhelming improvement over Judge Keasler, if only to add some balance to the range of opinions on the court.
Like J.R. Molina in 2006, I predict Hampton will receive more votes than the Democratic candidates for either governor or senator - not because of his own popularity but because the Court of Criminal Appeals is so widely disdained. Whether that will be enough to put Keith over the top depends on big-picture electoral dynamics he likely cannot influence. But at least he'll be in a position - like Craig Watkins in the '06 Dallas DA's race - to capitalize on serendipitous electoral trends if things happen to break just the right way. Dems have a better chance of capturing these seats IMO than they do senator, governor, attorney general, or any of the higher profile races on next year's ballot.
Death penalty deterrent evanescent, symbolic
A couple of readers asked my opinion of a column over the weekend in the Houston Chronicle by Rick Casey ("A murder mystery by the numbers," Nov. 7) analyzing estimates of the death penalty's deterrence value. Here's the bottom line regarding the results of the latest, greatest academic study of Texas-specific data:
In my experience, the death penalty's deterrent effect is a lot like the existence of God - you believe in it if you need to believe in it, but it cannot be proven or disproven by available data in a way that will satisfy the culture warriors on either side.
Let's face it: If the death penalty seriously deterred, then Texas as the nation's execution leader would surely see the greatest reduction in murder rates nationally. But our murder rates, though declining, remain above the national average (in line with other southern states), so clearly other factors are more determinative.
In general, people believe harsh penalties deter misbehavior more than they do. (As Mark Kleiman's new book points out, certainty and immediacy of punishment are much more important.) After the Texas Legislature made stealing even the smallest amount of scrap metal a felony, total thefts skyrocketed thanks to the rising cost of copper. The resulting impact on crime from increased penalties is at best (to use a word I learned from Justice Alito this week) evanescent.
It doesn't really matter if the death penalty deters or not because its greatest importance is as a symbol, pro and con. Neither side will budge an inch no matter what this or that new study might find, and the broader public seems profoundly unmoved, as well - at least until the day an individual voter must enter a jury box and decide an individual case.
The Gallup poll question generally cited to show public support for capital punishment asks, "Are you in favor of the death penalty for a person convicted of murder." Here is the data on that question over time - most recently, 65% of the public said they agreed that people convicted of murder should get the death penalty.
But that question comes at respondents completely detached from reality. In Texas, which is the acknowledged national death penalty leader, in FY 2007 we sent just 14 murderers to death row, while a whopping 1,078 entered TDCJ that year based on homicide charges. Even in the Lone Star State, the vast, overwhelming majority of murderers are not sentenced to death. When the question is presented to them directly, Texas' "death-qualified" juries usually don't impose the sentence. In 2007, out of 51 cases where defendants were convicted of capital murder, in 37 of them juries gave sentences of life without parole.
Juries are selected from voter rolls so there's a disconnect when 65% tell pollsters murderers should die but 72.5% of Texas capital juries fail to impose a death sentence. What that means, I think, is that the issue is more complex than it's presented by pollsters and people are smarter than such ill-informed, misleading questions can measure. When confronted with the real-world issues that surround killing by the state, juries balk more often than not, even in Texas.
I'm not inherently against the death penalty, though I certainly share fears that our sloppy justice system might convict and kill an innocent person. (Besides Timothy Cole, I mean.) I think death is an appropriate sentence for lifers who commit murders in prison - tacking on more years simply isn't a meaningful deterrent in that setting. Make me philosopher-king, and I also think it should be used only in cases (which is most of them) where the identity of the killer is not in dispute. At the same time, the cause of "saving" death-row offenders from a fate that awaits us all, when life without parole is the alternative, frankly fails to motivate me.
Perhaps there is some vanishingly small, short-term deterrent effect to the death penalty. Like the existence of a God that created man in His own image, I doubt it but won't rule it out. But in its current form, the death penalty is a political boondoggle and distraction involving a miniscule number of cases - a costly sideshow carnival act of the first order that distracts from more important discussions. Any legitimate cost-benefit analysis would find death-penalty deterrence doesn't measure up compared to underfunded but less-expensive programs that would save more lives and do more to reduce crime and deaths.
Death penalty cases easily can cost the county bringing them upward of $1 or $2 million each before they're said and done. (It'd be easier to justly complain about that cost if Texas didn't screw up so many cases - it literally doesn't matter if the judge slept with the prosecutor, our Court of Criminal Appeals will sign off on the execution.)
Would that money do more to promote safety if, for example, it were used to reduce community supervision caseloads or pay for ignition interlock devices on the cars of recidivist drunks? Almost certainly. But the details of misdemeanor probation conditions are boring things to debate compared to the death penalty, where everyone gets to claim the moral high ground, look down their noses, sneer, and accuse one another of "bias." That's all a lot more fun (and politically useful, one supposes) than prioritizing criminal justice spending on programs that demonstrably reduce deaths and crime.
So to recap, the study purports to find a deterrent effect in the immediate aftermath, even if no one knows about the execution, and it mostly "deters" people from other kinds of murders.They found that many earlier studies had vastly overestimated the effect, but the number of murders did go down in the short-term aftermath of executions.
Based on two different statistical models, they found the effect in the months after each execution to be a reduction of between 0.5 to 2.5 homicides.
That may not sound like much, but as the authors note, “even the estimated .5 deterrent per execution yields an estimated reduction in the expected numbers of monthly homicides of 5 to 10 during the subsequent 12 months, which is substantial.”
I'm sure this isn't the last word on the issue. That's no mystery. Here's the mystery:
This study and previous ones show no correlation between the amount of publicity executions receive and their deterrent effect.
“We have no theory on that,” Teske said on Friday. After a few more questions, he said, “I hear your frustration. If I wasn't working with one of the top guys in the nation, my confidence would be shaken.”
One other mystery: The study shows, as other studies have, more impact on the kinds of murders that don't qualify for the death penalty than on those that do.
In my experience, the death penalty's deterrent effect is a lot like the existence of God - you believe in it if you need to believe in it, but it cannot be proven or disproven by available data in a way that will satisfy the culture warriors on either side.
Let's face it: If the death penalty seriously deterred, then Texas as the nation's execution leader would surely see the greatest reduction in murder rates nationally. But our murder rates, though declining, remain above the national average (in line with other southern states), so clearly other factors are more determinative.
In general, people believe harsh penalties deter misbehavior more than they do. (As Mark Kleiman's new book points out, certainty and immediacy of punishment are much more important.) After the Texas Legislature made stealing even the smallest amount of scrap metal a felony, total thefts skyrocketed thanks to the rising cost of copper. The resulting impact on crime from increased penalties is at best (to use a word I learned from Justice Alito this week) evanescent.
It doesn't really matter if the death penalty deters or not because its greatest importance is as a symbol, pro and con. Neither side will budge an inch no matter what this or that new study might find, and the broader public seems profoundly unmoved, as well - at least until the day an individual voter must enter a jury box and decide an individual case.
The Gallup poll question generally cited to show public support for capital punishment asks, "Are you in favor of the death penalty for a person convicted of murder." Here is the data on that question over time - most recently, 65% of the public said they agreed that people convicted of murder should get the death penalty.
But that question comes at respondents completely detached from reality. In Texas, which is the acknowledged national death penalty leader, in FY 2007 we sent just 14 murderers to death row, while a whopping 1,078 entered TDCJ that year based on homicide charges. Even in the Lone Star State, the vast, overwhelming majority of murderers are not sentenced to death. When the question is presented to them directly, Texas' "death-qualified" juries usually don't impose the sentence. In 2007, out of 51 cases where defendants were convicted of capital murder, in 37 of them juries gave sentences of life without parole.
Juries are selected from voter rolls so there's a disconnect when 65% tell pollsters murderers should die but 72.5% of Texas capital juries fail to impose a death sentence. What that means, I think, is that the issue is more complex than it's presented by pollsters and people are smarter than such ill-informed, misleading questions can measure. When confronted with the real-world issues that surround killing by the state, juries balk more often than not, even in Texas.
I'm not inherently against the death penalty, though I certainly share fears that our sloppy justice system might convict and kill an innocent person. (Besides Timothy Cole, I mean.) I think death is an appropriate sentence for lifers who commit murders in prison - tacking on more years simply isn't a meaningful deterrent in that setting. Make me philosopher-king, and I also think it should be used only in cases (which is most of them) where the identity of the killer is not in dispute. At the same time, the cause of "saving" death-row offenders from a fate that awaits us all, when life without parole is the alternative, frankly fails to motivate me.
Perhaps there is some vanishingly small, short-term deterrent effect to the death penalty. Like the existence of a God that created man in His own image, I doubt it but won't rule it out. But in its current form, the death penalty is a political boondoggle and distraction involving a miniscule number of cases - a costly sideshow carnival act of the first order that distracts from more important discussions. Any legitimate cost-benefit analysis would find death-penalty deterrence doesn't measure up compared to underfunded but less-expensive programs that would save more lives and do more to reduce crime and deaths.
Death penalty cases easily can cost the county bringing them upward of $1 or $2 million each before they're said and done. (It'd be easier to justly complain about that cost if Texas didn't screw up so many cases - it literally doesn't matter if the judge slept with the prosecutor, our Court of Criminal Appeals will sign off on the execution.)
Would that money do more to promote safety if, for example, it were used to reduce community supervision caseloads or pay for ignition interlock devices on the cars of recidivist drunks? Almost certainly. But the details of misdemeanor probation conditions are boring things to debate compared to the death penalty, where everyone gets to claim the moral high ground, look down their noses, sneer, and accuse one another of "bias." That's all a lot more fun (and politically useful, one supposes) than prioritizing criminal justice spending on programs that demonstrably reduce deaths and crime.
Sunday, November 08, 2009
Most Grits readers say get rid of constables
Last week Grits posed this question in a reader poll: "Does Texas still need constables in the 21st century? A whopping 67% of you said "No." Another 22% wanted to keep them and 9% weren't sure.
Count me among those who believe constables should and ultimately will go the way of the county inspector of hides and animals. They're anachronisms, even if for the moment in the bigger counties they're often also well-funded sources of law-enforcement pork that duplicate larger agencies' capacity, if frequently in a less regulated or professional environment. They're also bottom-tier elected officials, which is enough to receive deference from the political establishment in both parties when their power is challenged. Even where they work as they're historically supposed to, constables require duplicative supervisory and administrative staffing and counties would probably function better if those duties were subsumed by the Sheriff.
Most Texas constables stick to their traditional duties, but in larger jurisdictions they've become mini-police departments. A series of recent items from the Dallas News underscores how little oversight these agencies receive compared to their often dramatically expanding budgets:
It sounds like Biscoe and Commissioner Sarah Eckhardt are asking the right questions about constables' request to outfit them with more militaristic equipment like Sheriff's deputies. After the episode where a deputy constable tasered a 72-year old great grandmother because she dared him to, Travis County constables ought to be treated like Barney Fife - given a single bullet apiece and told to keep in in their shirt pockets until ordered to take it out.
I fully understand why county commissioners in Dallas and Travis think constables need to be reined in. The Statesman story included this telling comment: "Travis County Sheriff Greg Hamilton earlier criticized Bieze's actions in the Taser incident. On Monday, Hamilton declined to comment on the role of the constable, but Travis County sheriff's spokesman Roger Wade said: 'According to the (Texas Code of Criminal Procedure), the only difference (between the sheriff and constable) is the name.'" That's technically true, if also somewhat troubling. Perhaps it's something the Legislature should take a stab at rectifying sooner than later.
Count me among those who believe constables should and ultimately will go the way of the county inspector of hides and animals. They're anachronisms, even if for the moment in the bigger counties they're often also well-funded sources of law-enforcement pork that duplicate larger agencies' capacity, if frequently in a less regulated or professional environment. They're also bottom-tier elected officials, which is enough to receive deference from the political establishment in both parties when their power is challenged. Even where they work as they're historically supposed to, constables require duplicative supervisory and administrative staffing and counties would probably function better if those duties were subsumed by the Sheriff.
Most Texas constables stick to their traditional duties, but in larger jurisdictions they've become mini-police departments. A series of recent items from the Dallas News underscores how little oversight these agencies receive compared to their often dramatically expanding budgets:
- Dallas News: County and state should rein in constables
- Watkins seek court order to halt Dallas County constable investigation.
- Dallas constables dog at center of new debate.
- Dallas constable challenges investigation; staff allegations can't be ignored, officials say
- Dallas County constables' growing ticketing said to boost safety - and county coffers
- With little scrutiny, Dallas County constables have turned offices into de facto police departments
It sounds like Biscoe and Commissioner Sarah Eckhardt are asking the right questions about constables' request to outfit them with more militaristic equipment like Sheriff's deputies. After the episode where a deputy constable tasered a 72-year old great grandmother because she dared him to, Travis County constables ought to be treated like Barney Fife - given a single bullet apiece and told to keep in in their shirt pockets until ordered to take it out.I fully understand why county commissioners in Dallas and Travis think constables need to be reined in. The Statesman story included this telling comment: "Travis County Sheriff Greg Hamilton earlier criticized Bieze's actions in the Taser incident. On Monday, Hamilton declined to comment on the role of the constable, but Travis County sheriff's spokesman Roger Wade said: 'According to the (Texas Code of Criminal Procedure), the only difference (between the sheriff and constable) is the name.'" That's technically true, if also somewhat troubling. Perhaps it's something the Legislature should take a stab at rectifying sooner than later.
Stephen Colbert on prison privatization
In case y'all missed it last week, here's Stephen Colbert's recent take on prison privatization:
Just to have said it, the preposterous notion of Arizona selling its prisons then leasing them back from the buyer to solve short-term cash flow problems ranks among the most irresponsible government schemes I've ever heard of from the taxpayers' perspective. Do the math yourself - there's a fundamental economic reason people choose to buy their homes instead of rent them. It's a lot cheaper in the long run. And for better or worse, governments are in it for the long run.
For more recent private prison news check out the blog Texas Prison Bidness.
| The Colbert Report | Mon - Thurs 11:30pm / 10:30c | |||
| The Word - The Green Mile | ||||
| ||||
Just to have said it, the preposterous notion of Arizona selling its prisons then leasing them back from the buyer to solve short-term cash flow problems ranks among the most irresponsible government schemes I've ever heard of from the taxpayers' perspective. Do the math yourself - there's a fundamental economic reason people choose to buy their homes instead of rent them. It's a lot cheaper in the long run. And for better or worse, governments are in it for the long run.
For more recent private prison news check out the blog Texas Prison Bidness.
Friday, November 06, 2009
Bradley seeks closed meetings, records for Forensic Science Commission
I know, gentle readers, you will all be shocked to learn what Williamson County District Attorney John Bradley thinks Forensic Science Commission investigations should be secret and closed to the public. That suggestion tops the list of things he'll propose next week to the Texas Senate Criminal Justice Committee, according to an informative article by Mary Alice Robbins at Texas Lawyer. Bradley suggests:
On the bright side:
E pur si muove
UPDATE (11/8): Check out a lengthy profile of John Bradley from the Austin Statesman.
- Making investigations secret and meetings about them closed.
- Re-education of commissioners: "Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says."
- Lengthening terms for commissioners. (No word why the governor couldn't just reappoint if continuity is so important.)
- Creating new rules and procedures for the commission (no detail).
- "Clarifying" whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire's word for it.)
On the bright side:
Bradley says, “I do plan to recommend that the commission move forward and complete a report in the Willingham case. I think it’s in the best interest of the public to have the report come out.”Don't look for that to happen before the March Governor's primary, though, and maybe not until after next year's general election, if I had to guess. What's more, I'd be willing to bet it won't look much like the version that was released by Dr. Beyler. Perhaps I'm too cynical, but this appears to be a straight up case of politics trumping science.
E pur si muove
UPDATE (11/8): Check out a lengthy profile of John Bradley from the Austin Statesman.
A "perverse" position on prosecutors fabricating evidence ... by the Obama Administration
Wednesday the US Supreme Court held oral arguments on an important case regarding prosecutorial misconduct, where prosecutors sought absolute immunity when they fabricate evidence to frame a defendant if the information is used at trial.
In looking at the transcript (pdf) from Pottawatamie County v. McGhee, it was a bit of a shock to read Neal Katyal, the attorney representing the Obama Administration, tell the court that if a prosecutor knows a police officer fabricated evidence and puts it on at trial, there is not a Fifth Amendment due process violation (p. 20) !! That's change we can believe in, baby! Yikes!!
Having earlier previewed the case on Grits, I wanted to point readers to some of the initial coverage in its aftermath and offer some initial thoughts:
The Obama Administration's postion before the court was to reject the idea that US citizens have "a free-standing due process right not to be framed," according to Katyal. Justice Stevens dismissed that declaring, "There is no free-standing right. There is just a right not to convict a person with made-up evidence," adding:
I also thought it was interesting that Justices seemed fairly dismissive of the effectiveness of other sanctions against prosecutors. Sotomayor referenced "numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage."
Finally, to the handicapping. From the Christian Science Monitor to the Section 1983 Blog, most folks predict the vote will be close. Just from reading the transcript, I'm not sure I agree. I'd predict near-certain defeat for the prosecutors and the Obama Administration - the question is, what will defeat look like? Several comments from key justices left me with that impression.
Notably, at one point Justice Breyer asked McGhee's attorney, "what is the most safe rule that will allow you to win your case?" The answer to that question IMO will probably end up being the court's decision. Breyer also seemed to reject the prosecutors' cagey technical arguments why they couldn't be liable for pretrial behavior: "I don't see a conceptual problem," he said, "Maybe there are practical problems, but I don't see a conceptual one."
Justice Kennedy is usually the swing vote on the court and oft-considered the body's bellwether. He was the first justice to ask a question of Pottawatamie County's attorney. In its entirety, his question was, "Your -- your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons. ... I mean, we were just spinning our wheels in that case?" He later summarized the prosecutors position as "the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition." That doesn't sound to me like a man who is inclined to side with the target of such jabs (though of course all such prognostications at this point are mere speculative tea-leaf reading - hey, this is a blog).
Based on what was said at oral argument, I think they could and likely will easily find a (probably narrow, incrementalist) answer to Breyer's question that sides with McGhee and pulls in Breyer, Ginsburg, Stevens, Sotomayor and Kennedy, at which point I wouldn't be surprised to see Scalia and perhaps even Chief Justice Roberts hop on board, just so they'll have some influence over the opinion and avoid a bad vote. Even though justices seemed sympathetic to the practical concerns raised by prosecutors, they all seemed reluctant to grant an official green-light for prosecutors to frame innocent people. If I were a betting man, I'd wager they don't want to put their official imprimatur on such a "perverse" position, even if inexplicably the Obama Administration is willing to do so.
In looking at the transcript (pdf) from Pottawatamie County v. McGhee, it was a bit of a shock to read Neal Katyal, the attorney representing the Obama Administration, tell the court that if a prosecutor knows a police officer fabricated evidence and puts it on at trial, there is not a Fifth Amendment due process violation (p. 20) !! That's change we can believe in, baby! Yikes!!
Having earlier previewed the case on Grits, I wanted to point readers to some of the initial coverage in its aftermath and offer some initial thoughts:
- NY Times: Justices, in aftermath of two murder cases, hear claims of a process gone wrong
- Christian Science Monitor: Supreme Court appears split on tackling rogue prosecutors
- SCOTUSBlog: Rethinking prosecutorial immunity?
- Time magazine: When is it legal to frame a man for murder?
- NPR: High court ways prosecutors' immunity
- Dahlia Lithwick, Slate: The Framers on the framers
- Durham in Wonderland: Pottawatamie County and Nifong
- Section 1983 Blog: Pottawattamie County v. McGhee Oral Argument Transcript
- Preaching to the Choir: Supreme Court Bizarro World
- John Terzano, Huffington Post: Prosecutors must be held accountable for misconduct
- AP: Court worried about stifling prosecutors
The Obama Administration's postion before the court was to reject the idea that US citizens have "a free-standing due process right not to be framed," according to Katyal. Justice Stevens dismissed that declaring, "There is no free-standing right. There is just a right not to convict a person with made-up evidence," adding:
of course a prosecutor insofar as he's involved in the prosecutorial stage is absolutely immune. But if he's involved in the investigatorial stage of that event, well, then he's not immune absolutely. That's a policy decision. That has nothing to do with free-standing rights.Katyal insisted to the court that while a policeman or even a prosecutor who fabricated evidence in the investigative stage of a case only had qualified immunity, if the same prosecutor put the fabricated evidence on at trial, they would confer upon themselves absolute immunity for the act - an outcome Stevens referred to as "perverse." Yes, that's right, one of the liberals on the US Supreme Court - the Justice President Obama is most likely to replace next, in fact - called the Obama Administration's doctrine of prosecutorial exceptionalism "perverse." Chew on that for a moment, Democrats.
I also thought it was interesting that Justices seemed fairly dismissive of the effectiveness of other sanctions against prosecutors. Sotomayor referenced "numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage."
Finally, to the handicapping. From the Christian Science Monitor to the Section 1983 Blog, most folks predict the vote will be close. Just from reading the transcript, I'm not sure I agree. I'd predict near-certain defeat for the prosecutors and the Obama Administration - the question is, what will defeat look like? Several comments from key justices left me with that impression.
Notably, at one point Justice Breyer asked McGhee's attorney, "what is the most safe rule that will allow you to win your case?" The answer to that question IMO will probably end up being the court's decision. Breyer also seemed to reject the prosecutors' cagey technical arguments why they couldn't be liable for pretrial behavior: "I don't see a conceptual problem," he said, "Maybe there are practical problems, but I don't see a conceptual one."
Justice Kennedy is usually the swing vote on the court and oft-considered the body's bellwether. He was the first justice to ask a question of Pottawatamie County's attorney. In its entirety, his question was, "Your -- your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons. ... I mean, we were just spinning our wheels in that case?" He later summarized the prosecutors position as "the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition." That doesn't sound to me like a man who is inclined to side with the target of such jabs (though of course all such prognostications at this point are mere speculative tea-leaf reading - hey, this is a blog).
Based on what was said at oral argument, I think they could and likely will easily find a (probably narrow, incrementalist) answer to Breyer's question that sides with McGhee and pulls in Breyer, Ginsburg, Stevens, Sotomayor and Kennedy, at which point I wouldn't be surprised to see Scalia and perhaps even Chief Justice Roberts hop on board, just so they'll have some influence over the opinion and avoid a bad vote. Even though justices seemed sympathetic to the practical concerns raised by prosecutors, they all seemed reluctant to grant an official green-light for prosecutors to frame innocent people. If I were a betting man, I'd wager they don't want to put their official imprimatur on such a "perverse" position, even if inexplicably the Obama Administration is willing to do so.
More detail on scent lineup case headed to Texas CCA
A helpful reader points to a December 2007 article from the San Jacinto County Times about the case of Richard Lynn Winfrey, Sr., which was accepted this week by the Court of Criminal Appeals for purposes of evaluating scent lineup evidence. Here's the description of the case against him, including vastly overblown claims by prosecutors about the reliability of dog-scent lineups:
In closing arguments at trial, Winfrey's attorney described the array of evidence presented against his client - Pikett's dogs and a jailhouse snitch:
That appears to be the case here, to judge by this media description. Overestimating the value of bad forensics and a jailhouse informant could easily have combined to convince jurors an innocent man was guilty. I don't know for sure this is an actual innocence case, but it has many of the earmarks. The defendant has steadfastly maintained he didn't do it.
That's all good news in terms of how the CCA will likely view the petition to evaluate scent lineup evidence. If there were other significant evidence against Winfrey, some judges on the court would be tempted to overlook flawed forensics as harmless error. But in this instance, the paucity of evidence casts the harsh spotlight squarely on Deputy Pikett, and for reasons described in the recent Innocence Project of Texas report, I suspect his methods won't survive close examination.
While a Houston appeals court had earlier approved of Pikett's dogs - a case where Pikett allegedly misrepresented his academic credentials on the stand - this is a case of first impression for the CCA. They can more or less start with a clean slate. While some commenters have expressed (justified) skepticism that Judge Keller and Co. will do the right thing, I remain hopeful, in part because I don't think the court would have accepted the case if there weren't five judges inclined to disfavor scent lineup evidence. We'll see soon enough.
Winfrey was charged with capital murder but since the missing guns were never recovered the jury had a reasonable doubt as to whether the murder occurred in the course of committing robbery and convicted Winfrey on the lesser included offense of murder.Interestingly, to judge by comments in the New York Times Wednesday, the FBI now isn't as supportive of scent lineup evidence as it was two years ago when Mr. Winfrey's case went to trial. Here's how they described the reliability of the tactic:
“This trial has shown that canine scent evidence, which has been upheld by appellate courts as reliable scientific evidence is as powerful as DNA evidence to support a conviction,” [San Jacinto County Criminal District Attorney Bill] Burnett said.
“The FBI is comfortable using Fort Bend County Deputy Keith Pikett’s dogs and canine scent evidence and I, as a Texas prosecutor, support the use of canine scent evidence to help bring criminals before the bar of justice.”
Giving the court his qualifications as well as the qualifications of his four canines, Pikett said he conducted two scent lineups – one in August of 2004 in San Jacinto County and one in August of 2007 near Bellaire.
“Quincy and Jag, registered bloodhounds, were used in 2004,” Pikett said. “Quincy has ran 976 felony trails, participated in 107 lineups and done 1,480 scent pad cases and wrong only two times on the scent pad lineups.” Pikett blamed himself for the two errors. He said Jag has been on 356 trails, 413 scent lineups and never proven to be wrong.
He said he has two other dogs, James Bond and Clue. James Bond has been on 279 trails and 964 scent pad lineups and never wrong, while Clue has been on 92 trails and 406 scent pad lineups and never wrong.
During the 2004 scent lineup, two of Pikett’s dogs alerted on scents from Richard Winfrey Jr. and Megan Winfrey.
The second scent lineup was conducted in August 2007, three years after the first, using scent pads from Burr’s clothing and Richard Winfrey Sr. At that time, Quincy and Clue both alerted on Richard Winfrey Sr., Pikett said.
Concluding a series of witnesses called by Burnett was David Wayne Campbell, 44, who is currently completing his sentence in the Federal Detention Center, Houston. Testifying last Thursday, Campbell said he knew Richard Winfrey Sr. while they were incarcerated in the Montgomery County Jail. Campbell said he overheard Winfrey describe a murder in San Jacinto County and how it occurred.
Thomas Lintner, the chief of the F.B.I. Laboratory’s evidence response team unit said that the bureau has been using scent dogs to link people to crimes for four years as an “emerging technology” and works under carefully controlled conditions using “scent transfer units” that vacuum air across pads with minimal contamination. Even then, the F.B.I. restricts the uses of the evidence produced by dogs.It doesn't sound to me like the FBI would back up Pikett's claims of reliability for his dogs if anyone had asked them, but that's what the jury heard from San Jacinto County prosecutors, for whom Pikett's dogs are "as powerful as DNA evidence to support a conviction." Unreal.“It’s a lead generation activity,” he said. “It’s not something we’re going to take to court and say, ‘we need to indict this guy.’ ”
In closing arguments at trial, Winfrey's attorney described the array of evidence presented against his client - Pikett's dogs and a jailhouse snitch:
You’ve heard information about a crime that took place but no evidence. The medical examiner told you about wounds but no evidence to tell you who caused those wounds. Texas Rangers said there were no signs of forced entry. Burr’s house was cleaner than my house and nothing out of place. Nothing was in disarray. Nothing to indicate a struggle or robbery. There was no evidence of guns being stolen or nothing else taken. If you don’t find robbery you can’t find capital murder. There was no evidence of a robbery at all and you can’t find capital murder,” Taylor told the jury.There are a number of patterns that recur in recent Texas DNA exonerations, and one of them is that a single error is seldom enough to convict an innocent person, but it's much more likely to happen when two unreliable sources of evidence are combined - particularly when there's no other corroborating evidence.
“Inside the house there were no prints, no one else’s blood at all and none outside. There is nothing at all to tie Richard Winfrey Sr. to Burr’s trailer – no eye witness, no DNA, no woman to match pubic hair, died red hair found. There was nothing found to tie any of the three Winfrey’s to the scene. And there was nothing found that could be traced back to Burr in the Winfrey’s possession,” Taylor said.
“Winfrey told Campbell of things he had heard two years after Burr’s death. Winfrey didn’t admit to the crime. There is absolutely no evidence of a robbery. Nothing missing except a Bible and we’re not sure of that. Dogs and Campbell’s testimony are the only things you got. You have a tough task ahead of you,” Taylor said.
That appears to be the case here, to judge by this media description. Overestimating the value of bad forensics and a jailhouse informant could easily have combined to convince jurors an innocent man was guilty. I don't know for sure this is an actual innocence case, but it has many of the earmarks. The defendant has steadfastly maintained he didn't do it.
That's all good news in terms of how the CCA will likely view the petition to evaluate scent lineup evidence. If there were other significant evidence against Winfrey, some judges on the court would be tempted to overlook flawed forensics as harmless error. But in this instance, the paucity of evidence casts the harsh spotlight squarely on Deputy Pikett, and for reasons described in the recent Innocence Project of Texas report, I suspect his methods won't survive close examination.
While a Houston appeals court had earlier approved of Pikett's dogs - a case where Pikett allegedly misrepresented his academic credentials on the stand - this is a case of first impression for the CCA. They can more or less start with a clean slate. While some commenters have expressed (justified) skepticism that Judge Keller and Co. will do the right thing, I remain hopeful, in part because I don't think the court would have accepted the case if there weren't five judges inclined to disfavor scent lineup evidence. We'll see soon enough.
Thursday, November 05, 2009
Travis County jail expansion results in few new beds
Travis County opened a massive new jail wing last week with 1,336 beds, though those will mostly replace so-called "variance" beds that the state Commission on Jail Standards previously authorized with temporary waivers to accommodate of jail overcrowding. (The daily newspaper didn't cover the story, though it got some play on local TV news.) Oct. 28 was the grand opening for Building 12 at the jail, which is reportedly the largest such unit in Central Texas.
I spoke yesterday with Maj. Darren Long who's in charge of the jail for more details about where Travis stands.
He told me a total of 817 "variance beds" at the jail will be eliminated over the next five months as they open up different pods in Building 12. An additional 336 beds will be eliminated by closing a number of smaller units on the campus, according to the TCSO. That's a total of 1,153 out of the 1,336 "new" beds that are simply replacing old ones that will be taken out of service, so at the end of the day the total capacity expansion will be rather minimal: Just over 180 new beds, according to these data.
Long said another 384 beds will be temporarily mothballed and left unstaffed, but will remain available for use in peak summer months. The total cost of all the improvements came to $72 million, he said.
To tie a bow on this story, I should mention that, in the run-up to the bond election where Travis County voters approved this expansion, County Judge Sam Biscoe wrote to Grits that:
When Travis County issued these bonds, I opposed them at the ballot box in part because I didn't trust that the county would actually replace old beds, instead fearing they would simply take the opportunity to expand overall capacity. That concern now appears to have been unfounded. It's true the number of what Biscoe called "poor quality" beds being decommissioned was reduced, but the number of "variance beds" eliminated somehow increased, so the overall outcome is at least within the ballpark of what Biscoe suggested.
Maj. Long also mentioned that one of the decommissioned buildings formerly housed the county's work-release program, which was eliminated earlier this year in an effort to reduce jail overcrowding. Under the old work release program, inmates would come into the jail, stay at night, then leave to go to their job, also spending weekends in the jail.
In its stead they've created the Sheriff's Weekend Alternative Program (SWAP), in which folks check in on Saturday and Sunday, work 8-5 on county supervised projects like picking up trash, etc., but they don't stay there - they get to go home at night. Long said the change was made because the work-release program dealt with very low-level misdemeanors where safety was of little concern - after all, the inmates were being released every weekday, anyway.
TCSO public information officer Roger Wade told me the Sheriff believes the county needs more jail beds in the near term, but I continue to believe Travis County doesn't need to expand jail capacity, particularly in light of Long's assertion that 88% of Travis inmates are sitting in jail awaiting trial. If that's true, there's plenty of room for pursuing other alternatives before launching into more jail building. Indeed, that was sort of my point when Grits opposed the jail bonds four years ago: I thought, and continue to think, that the county should focus on diverting petty offenders from the jail and reducing unnecessary pretrial detention instead of immediately turning to construction as the cure for all ills.
I spoke yesterday with Maj. Darren Long who's in charge of the jail for more details about where Travis stands.
He told me a total of 817 "variance beds" at the jail will be eliminated over the next five months as they open up different pods in Building 12. An additional 336 beds will be eliminated by closing a number of smaller units on the campus, according to the TCSO. That's a total of 1,153 out of the 1,336 "new" beds that are simply replacing old ones that will be taken out of service, so at the end of the day the total capacity expansion will be rather minimal: Just over 180 new beds, according to these data.
Long said another 384 beds will be temporarily mothballed and left unstaffed, but will remain available for use in peak summer months. The total cost of all the improvements came to $72 million, he said.
To tie a bow on this story, I should mention that, in the run-up to the bond election where Travis County voters approved this expansion, County Judge Sam Biscoe wrote to Grits that:
Unfortunately, the new beds under discussion contain very few additional beds. Almost all of them are replacement beds. Here's the explanation: in addition to the 575 variance beds, another 888 new beds are to replace beds that are in "poor" condition. Thus, construction of a total of 1463 beds without a net gain of a single bed. The 888 old beds do not have to be replaced, but something must be done to address life and safety issues, which will cost a substantial amount periodically and requires the continued use of an old and inefficient system.(Maj. Long disputed the "poor quality" characterization, FWIW, saying all beds met TCJS standards.)
When Travis County issued these bonds, I opposed them at the ballot box in part because I didn't trust that the county would actually replace old beds, instead fearing they would simply take the opportunity to expand overall capacity. That concern now appears to have been unfounded. It's true the number of what Biscoe called "poor quality" beds being decommissioned was reduced, but the number of "variance beds" eliminated somehow increased, so the overall outcome is at least within the ballpark of what Biscoe suggested.
Maj. Long also mentioned that one of the decommissioned buildings formerly housed the county's work-release program, which was eliminated earlier this year in an effort to reduce jail overcrowding. Under the old work release program, inmates would come into the jail, stay at night, then leave to go to their job, also spending weekends in the jail.
In its stead they've created the Sheriff's Weekend Alternative Program (SWAP), in which folks check in on Saturday and Sunday, work 8-5 on county supervised projects like picking up trash, etc., but they don't stay there - they get to go home at night. Long said the change was made because the work-release program dealt with very low-level misdemeanors where safety was of little concern - after all, the inmates were being released every weekday, anyway.
TCSO public information officer Roger Wade told me the Sheriff believes the county needs more jail beds in the near term, but I continue to believe Travis County doesn't need to expand jail capacity, particularly in light of Long's assertion that 88% of Travis inmates are sitting in jail awaiting trial. If that's true, there's plenty of room for pursuing other alternatives before launching into more jail building. Indeed, that was sort of my point when Grits opposed the jail bonds four years ago: I thought, and continue to think, that the county should focus on diverting petty offenders from the jail and reducing unnecessary pretrial detention instead of immediately turning to construction as the cure for all ills.
Texas Court of Criminal Appeals will hear arguments on dog-scent evidence
Thanks to an attentive commenter, I learned that just yesterday the Texas Court of Criminal Appeals agreed to hear a case out of San Jacinto County that calls into question the validity of dog scent lineups.
Meanwhile, the Houston Chronicle today has coverage of the three new civil lawsuits challenging dog scent testimony. And Jacob Sullum of Reason addresses the myth of the infallible police dog.
It's the judiciary's job to keep unreliable forensics out of the courtroom, but until now the CCA treated the issue as a task for the Legislature or some other body. (For example, the court's Criminal Justice Integrity Unit called on the Lege to reform eyewitness ID practices among police, but the court could easily require such changes themselves if they cared to do so.) Perhaps dog scent lineups will be the watershed moment when the court realizes it needs to more seriously vet unreliable forensics and can't just rely on old precedents approving invalid science.
UPDATE: Via the Texas Court of Criminal Appeals Blog, "Here's a link to the court of appeals opinion (published). Here's a link to the court of appeals info."
This is absolutely excellent news, and I'm quite looking forward to hearing oral arguments in the case. As somebody who has frequently criticized the CCA, let me be the first to commend them for taking up this matter. For once, I'm proud of them for stepping up to the plate. It's pretty clear law enforcement won't stop on their own.09-0987 WINFREY, RICHARD LYNN, SR., SAN JACINTO, MURDER
1. An important question implicating the administration of justice is presented by the Court of Appeals' reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.
2. An important question implicating the administration of justice also is presented by the Court of Appeals' failure properly to evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.
Meanwhile, the Houston Chronicle today has coverage of the three new civil lawsuits challenging dog scent testimony. And Jacob Sullum of Reason addresses the myth of the infallible police dog.
It's the judiciary's job to keep unreliable forensics out of the courtroom, but until now the CCA treated the issue as a task for the Legislature or some other body. (For example, the court's Criminal Justice Integrity Unit called on the Lege to reform eyewitness ID practices among police, but the court could easily require such changes themselves if they cared to do so.) Perhaps dog scent lineups will be the watershed moment when the court realizes it needs to more seriously vet unreliable forensics and can't just rely on old precedents approving invalid science.
UPDATE: Via the Texas Court of Criminal Appeals Blog, "Here's a link to the court of appeals opinion (published). Here's a link to the court of appeals info."
Wednesday, November 04, 2009
Reduce pretrial detention to stave off jail overcrowding
I had a conversation with someone today at the Travis County Sheriff's Office who was surprised to learn that Travis County has one of the highest rates of jailed pretrial detainees among large counties, so I thought I'd gather up the relevant data for comparison.
As described on this blog many times, the primary cause of overcrowding in Texas jails is excessive pretrial detention, particularly in the larger counties. Based on data from the Texas Commission on Jail Standards (pdf), here are the pretrial detention rates for Texas' six largest counties, along with the percentage of jail inmates who are misdemeanor defendants being held pretrial:
Throughout Texas, this has been the main cause of county jail overcrowding over the last few years. Dr. Tony Fabelo has calculated that while overall jail population increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. And counties like Travis incarcerating significant numbers of misdemeanants pretrial are exacerbating the problem.
As recently as 1995, pretrial defendants made up just 30.3% of Texas county jail populations, compared to 54% today.
Prosecutors like pretrial detention because it induces plea bargains, in some cases even from people who may be actually innocent. Judges tend to like it because it lets them appear "tuff on crime." Since neither judges nor prosecutors must raise anyone's taxes to adopt that stance, it's an easy position to take that passes off the difficult decisions about jail overcrowding to commissioners courts.
It's worth noting that the National Association of Counties recently put out a report titled Jail Population Management: Elected County Officials' Guide to Pretrial Services (pdf). I've not yet gotten around to reading this timely document, but its publication reinforces my sense that reducing pretrial detention is the best way to reduce overcrowding pressures in the near term.
UPDATE: According to Maj. Darren Long of the Travis County Sheriff, the data reported to TCJS understates how many defendants in the Travis jail are pretrial detainees. He said the Urban Institute just completed a study of the jail population which has not yet been published, but according to their draft report a whopping 88% of Travis County jail inmates are pretrial detainees! That's an astonishing number. I'll try to figure out the source of the discrepancy in the coming days and report back.
As described on this blog many times, the primary cause of overcrowding in Texas jails is excessive pretrial detention, particularly in the larger counties. Based on data from the Texas Commission on Jail Standards (pdf), here are the pretrial detention rates for Texas' six largest counties, along with the percentage of jail inmates who are misdemeanor defendants being held pretrial:
Throughout Texas, this has been the main cause of county jail overcrowding over the last few years. Dr. Tony Fabelo has calculated that while overall jail population increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. And counties like Travis incarcerating significant numbers of misdemeanants pretrial are exacerbating the problem.
As recently as 1995, pretrial defendants made up just 30.3% of Texas county jail populations, compared to 54% today.
Prosecutors like pretrial detention because it induces plea bargains, in some cases even from people who may be actually innocent. Judges tend to like it because it lets them appear "tuff on crime." Since neither judges nor prosecutors must raise anyone's taxes to adopt that stance, it's an easy position to take that passes off the difficult decisions about jail overcrowding to commissioners courts.
It's worth noting that the National Association of Counties recently put out a report titled Jail Population Management: Elected County Officials' Guide to Pretrial Services (pdf). I've not yet gotten around to reading this timely document, but its publication reinforces my sense that reducing pretrial detention is the best way to reduce overcrowding pressures in the near term.
UPDATE: According to Maj. Darren Long of the Travis County Sheriff, the data reported to TCJS understates how many defendants in the Travis jail are pretrial detainees. He said the Urban Institute just completed a study of the jail population which has not yet been published, but according to their draft report a whopping 88% of Travis County jail inmates are pretrial detainees! That's an astonishing number. I'll try to figure out the source of the discrepancy in the coming days and report back.
Prison Legal News sues TDCJ over book censorship
I just received this press release via email:
Prison Legal News – For Immediate Release
November 4, 2009
PUBLISHER SUES TEXAS DEPT. OF CRIMINAL JUSTICE FOR CENSORING BOOKS
Corpus Christi, TX – Prison Legal News (PLN), a non-profit monthly publication that reports on criminal justice-related issues, filed suit today in federal district court against Brad Livingston, Executive Director of the Texas Dept. of Criminal Justice (TDCJ), and other TDCJ officials.
According to PLN’s complaint, TDCJ has inappropriately censored books sent to Texas state prisoners. One of the censored books was Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an accomplished journalist and award-winning author. Her book on incarcerated women was described by one reviewer as a "comprehensive and passionately argued indictment of the inhumane treatment of female prisoners ... the sort of shocking expose too seldom seen in these media days of so much celebrity fluff." Two other Texas prisoners also were not allowed to receive Women Behind Bars after placing book orders with PLN.
PLN contends that the censorship of Women Behind Bars, which was upheld by senior prison officials, was improper. Further, the TDCJ did not notify PLN of the censorship decision which would have provided PLN an opportunity to respond and contest that decision.
TDCJ staff also censored another book ordered from PLN, The Perpetual Prisoner Machine: How America Profits from Crime, by Joel Dyer, on the basis that the book mentions "rape." In fact, as PLN explains in its federal complaint, Perpetual Prisoner Machine "quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners." Again, the TDCJ did not notify PLN of this censorship.
"It is a sad commentary when government officials censor books sent to prisoners – particularly books that deal with prisoners’ rights and conditions in our nation’s prisons," stated PLN editor Paul Wright. "Apparently, the TDCJ prefers that prisoners remain uninformed about issues that directly affect them. We believe this is a poor rationale for censorship."
"For decades, Texas prisoners have had the right to read most books while they are incarcerated," said Scott Medlock, Director of the Texas Civil Rights Project’s Prisoners’ Rights Program. "If there is anything everyone should be able to agree on, it’s that encouraging prisoners to read is a good thing."
PLN is seeking compensatory, punitive and nominal damages plus declaratory and injunctive relief for violation of its rights under the First and Fourteenth Amendments, as well as attorney fees and costs.
The case is Prison Legal News v. Livingston, U.S. District Court (S.D. Texas, Corpus Christi Division), Case No. 2:09-cv-00296. PLN is ably represented by Scott Medlock with the Texas Civil Rights Project and by HRDC general counsel Daniel E. Manville in Ferndale, Michigan.
Prison Legal News (PLN), founded in 1990 and based in Seattle, Washington, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. PLN publishes a monthly magazine that includes reports, reviews and analysis of court rulings and news related to prisoners’ rights and criminal justice issues. PLN has almost 7,000 subscribers nationwide and operates a website (www.prisonlegalnews.org) that includes a comprehensive database of prison and jail-related articles, news reports, court rulings, verdicts, settlements and related documents. PLN is a project of the Human Rights Defense Center.
Hump Day Roundup
Here are several criminal-justice related items from the news that merit Grits readers' attention:
Ramshaw, Tribune tackle TYC mental illness discharges, restraint of disabled kids at school
Yesterday I neglected to offer a bloggerly "Howdy" to our friends over at the just-launched Texas Tribune, but this morning Emily Ramshaw forces the new site onto our radar screen with coverage of TYC's policies regarding mental health discharge, focusing on a recent case in Tyler where a mentally ill youth killed a schoolteacher at John Tyler High School. Reports Ramshaw:
Dozens of juvenile offenders with serious mental illness are released from TYC lock-ups every year because they’re too sick to treat — not because they’re no longer a threat to the community. In the last five years, the agency has discharged hundreds of youth under this mental illness statute.
One was a schizophrenic and psychotic 16-year-old who fatally stabbed a Tyler high school teacher in September, just months after his release from the TYC.
TYC officials say state law requires them to discharge juveniles who are mentally ill or profoundly disabled if they’ve completed their minimum sentence and aren’t benefiting from rehabilitation programs. Of the 206 youth offenders they’ve released under this provision since 2005, 20 percent have been recommitted to either the TYC or an adult lock-up.
Until this spring, a youth discharged for mental illness wasn’t eligible for specialized psychiatric services in the community. Enter Rep. Jim McReynolds, D-Lufkin, who last session shepherded a bill providing reentry services and health care referrals to youths discharged for mental illness. That care is being provided by the Texas Correctional Office of Offenders with Medical or Mental Impairment (TCOOMMI).
Prior to the bill “the treatment youth received out in the community was sporadic,” TYC spokesman Jim Hurley said. Hurley said with the McReynolds bill, the TYC can now refer kids with mental health diagnoses to care providers in their communities.
The legislation fills a gaping hole, but advocates say it isn’t foolproof: It’s tough to force youth and their guardians to participate with treatment plans or fill prescriptions. The mentally disturbed teenager who killed his Tyler teacher was discharged from the TYC after McReynolds’ measure went into effect.
While the Tyler case did occur after McReynolds' bill took effect, IMO that's not an indictment of his approach: It takes time to build up treatment capacity, which isn't necessarily available in every community. And for that matter, a 20% recommitment rate for youth receiving mental health discharges is really quite low compared to TYC's overall recidivism rates, which hover around 50%.
There's a risk the Tyler case will be used as a Willie-Horton-style indictment of Texas' juvenile justice system, when really it's an indictment of the profound lack of community-based mental health treatment and the inadequacy of the justice system to deal with mental illness. That view was expressed in Ramshaw's story by our friend Ana Correa
“For the kids who suffer from severe mental illness, it’s a shame they end up in the TYC to begin with,” said Ana Yanez-Correa, executive director of the Texas Criminal Justice Coalition. “My fear is that [the Tyler case] will be used as an example to not have anyone paroled out, when the truth is we just need better services.”
Relatedly, yesterday Ramshaw offered up an important article on the use of physical restraints on youth with disabilities in public schools. She wrote that in the 2007-'08 school year:
Excellent stuff from Ramshaw and the Tribune. I'm glad to see the new site up and running an wish Evan Smith and everyone involved the best of luck.school staff restrained four of every 100 special education students, with some students being restrained dozens of times. More than 40 percent of restrained youth suffered from emotional problems like post-traumatic stress disorder; nearly 20 percent were autistic.
Educators say restraints are sometimes the only way to prevent disasters. They point to the September 2009 case of a 16-year-old Tyler special education student who fatally stabbed his music teacher in a classroom.
But disability rights advocates say the numbers point to a crisis in Texas special education. They say teachers are resorting to physical restraints because they aren’t properly trained to manage their students’ disabilities – posing a threat to vulnerable children and to themselves.
Their concerns were echoed in Washington this spring, where a federal agency exposed thousands of restraints – including several deaths – of special education students in schools nationwide. In many cases, the U.S. Government Accountability Office found restraints were performed on children who weren’t physically aggressive, and by teachers who weren’t trained to use them.
More litigation, disapprobation for dog 'scent lineups'
Yet another lawsuit will be filed today in federal court over false arrest and imprisonment based on dog "scent lineup" evidence from Fort Bend County Sheriff's Deputy Keith Pikett. Reports AP:
We also get a little update on the current status of Deputy Pikett's scent lineup work:
Relatedly, the New York Times has coverage this morning of Deputy Pikett's scent lineups and the Innocence Project of Texas report (pdf) criticizing the practice. Times reporter John Schwarz has a blog post with additional information, including more detail about the FBI's past and present use of the practice:Three men who spent months in jail after dogs linked their scents to evidence from crimes they did not commit are filing a lawsuit claiming Texas authorities falsely arrested and imprisoned them, their attorney said Tuesday.
The lawsuit, which will be filed in federal court in Houston on Wednesday, asks for compensatory and punitive damages for the emotional pain and suffering the men say they suffered in jail.
Named in the lawsuit are: five homicide investigators in the Houston Police Department; Fort Bend County Sheriff Milton Wright; and Deputy Keith Pikett, whose dogs were used in the investigations. The City of Houston and its police department are also listed as defendants.
This is at least the third lawsuit targeting Pikett, who has spent about 20 years training dogs named Clue, James Bond and Columbo to sniff out possible criminals in more than 2,000 scent identification lineups. Pikett says his dogs determine if a suspect's scent matches smells from crime scene evidence.
The use of scent lineups in the Hatfill/anthrax case is arguably the highest profile example in America of prosecuting based on accusations by dogs, but the Texas lawsuits show it's not an isolated incident.The ability of animals to read their handlers, known as the “Clever Hans” phenomenon, has been written about in The Times for 100 years.
While some states have used dogs for scent lineups, the Federal Bureau of Investigation says it shuns the practice, and uses dogs to follow a trail to a suspect or a location associated with him, and not to identify one person out of several. Thomas Lintner, the chief of the F.B.I. Laboratory’s evidence response team unit said that the bureau has been using scent dogs to link people to crimes for four years as an “emerging technology” and works under carefully controlled conditions using “scent transfer units” that vacuum air across pads with minimal contamination. Even then, the F.B.I. restricts the uses of the evidence produced by dogs.
“It’s a lead generation activity,” he said. “It’s not something we’re going to take to court and say, ‘we need to indict this guy.’ ”
A story written in 2002 by Scott Shane, now a New York Times reporter, when he worked at the Baltimore Sun, suggests, however, that F.B.I.’s approach to using dogs to gather evidence has not always been so scrupulous. That article (which is archived, and requires a payment to see in full), suggested that bloodhound handlers from Southern California brought in to assist in the search for the source of deadly anthrax in letters mailed in 2001 may have contributed to the the F.B.I.’s flawed decision to focus on Dr. Steven J. Hatfill, who was later cleared of suspicion in the case. One news report called bloodhounds the F.B.I.’s “secret weapon” linking Dr. Hatfill to the letters.
We also get a little update on the current status of Deputy Pikett's scent lineup work:
Jeff Blackburn, the author of the Innocence Project report, said of Mr. Pikett, “It’s a marvel to me that they’re still using him anywhere.”
Randall Morse, an assistant Fort Bend County attorney who is representing Mr. Pikett, said that that Mr. Pikett’s lineup work has dropped off considerably since the lawsuits began. While unwilling to comment extensively on cases in litigation, Mr. Morse said that Mr. Pikett and his dogs provide valuable evidence for police to act on, nothing more. He cited cases in which the dogs have not given police the answer they hoped for in linking a suspect to a crime, and were later proved right when another suspect was convicted.
But, he acknowledged, the process itself can seem mysterious, even to him. “The first time I saw it, I couldn’t understand what the dogs were doing,” but Mr. Pikett clearly did, he said. “He’s been doing it so long, he doesn’t understand why we don’t see it.”
That's pretty amazing coverage for the recent report (pdf) by my former employers at the Innocence Project of Texas. As journalists like to say, this story has legs ... in this case four of them.
See prior, related Grits coverage:
- 'Scent lineup' evidence may be used in Anthony Graves capital case
- CNN profiles cop wrongly accused by dog scent lineup
- A 'scent lineup'? Rover in the witness box
- DNA exoneration indicts Rover in the witness box
- 'Scent lineups stink to critics'
- 3 false convictions relied on dog-based scent lineups in Florida
- Scent lineups by dogs don't pass the smell test
- Texas Innocence Project vetting dog scent lineup cases
- Evidence mounts against dog handler, scent lineups
- Texas Innocence Project report discredits dog 'scent lineups'
- More innocent people accused by dog 'scent lineups,' but FBI now using technique
Tuesday, November 03, 2009
Montgomery County spending juvie diversion funds on mental health
I haven't heard much so far about how local juvenile probation departments are spending diversion money given them last spring by the Legislature to help keep kids out of the Texas Youth Commission, but here's a story out of Montgomery County ("New mental health program aimed at helping juveniles," Conroe Courier, Nov. 2) describing how they're spending the new money on unmet mental health needs:
With around 40 percent of juvenile offenders in Montgomery County on some sort of psychotropic medication – such as antidepressants – officials believe a new mental health diversion program will get those young offenders the help they need.Montgomery County’s Juvenile Probation Department, in collaboration with Tri-County Mental Health Mental Retardation, has started a program to ensure juvenile offenders with mental health issues get treatment and counseling, instead of detaining them, Director Ron Leach said.The program started Oct. 1.“We’re taking the services to them at home,” Leach said. “The goal is to get them out of detention and into services immediately.”The county funded about $50,000 for the program, and the department also received $50,000 from the state to staff a second care manager, Leach said. The program is capped at 15.Nationally, about 70 percent of juvenile offenders suffer from mental health disorders, with 25 percent experiencing disorders so severe that their ability to function is significantly impaired, according to a 2006 study from the National Center for Mental Health and Juvenile Justice.“On any given day,” Leach said, “about 40 percent (of the county’s juvenile offenders) are on psychotropic medication. Not all are severe mental health cases. Many are here for family violence.”Some of the youths with mental health issues are as young as 10, Leach said.
The comment section to that story included some interesting discussion on whether medicating youth can really help solve crime or whether youth in the juvenile justice system are overmedicated. I don't have strong or well-informed opinions on the topic, but it's worth raising the question.
Still, this seems like a worthwhile use of new diversion funds, focusing on a subpopulation for whom resources are perennially scarce and who TYC is particularly ill-equipped to manage. I'm interested in hearing how other communities are spending their new juvie diversion money.
Do prosecutors "hate new crimes"?
Our pal Shannon Edmonds of the Texas District and County Attorneys Association forwards a link to this short law review article provocatively titled, "Why prosecutors hate new crimes" (pdf). Give it a read, the fellow makes an interesting argument - one I partially (but not entirely) agree with. I replied to Shannon's email thusly:
I don't think prosecutors "hate" new crimes mainly because they have discretion to ignore them. When they really hate this or that change in criminal law, I haven't noticed prosecutors being particularly reticent about criticizing bills they don't like.
Thanks Shannon,It's certainly true that most new crimes and penalty increases are proposed by special interest groups, not police or prosecutors. But if prosecutors "hate" new crimes I'd expect them to oppose them at the Lege when they're proposed. That seldom happens. Ditto for "enhancements."
But surely "hate" is a little strong? They're not always out there promoting them, but prosecutors don't "hate" new crimes enough to publicly oppose them. And they certainly don't push to roll back extra crimes created in the past. Ever.
Perhaps the title should have been "Why prosecutors are sometimes slightly annoyed at new crimes even if they never say so publicly." ;)
I don't think prosecutors "hate" new crimes mainly because they have discretion to ignore them. When they really hate this or that change in criminal law, I haven't noticed prosecutors being particularly reticent about criticizing bills they don't like.
Should prostitutes be protected or prosecuted?
Are prostitutes criminals or victims? Or might the correct answer be "both"? And if it's "both," what should be the relationship of law enforcement to workers in the sex trade - should they seek to prosecute or protect them? Those questions are raised by an interesting program established by the Dallas Police Department known as the Prostitution Diversion Initiative (PDI). According to the Dallas News ("Dallas police to collect DNA from prostitutes," Nov. 3):
At the end of the day, says Dallas PD, the strategy of arresting and jailing prostitutes hasn't reduced the problem. "Many, if not all, arrests resulted in only a temporary solution, due in part to the turnaround time of these types of offenses. Since prostitution is considered a minor offense, these offenders are one of the first to be released from overcrowded jails, essentially creating a revolving door to which prostitutes would return upon release to the only environment and option they believe they have for survival."
It's too early to judge whether this program works better than an enforcement-only approach, since "It is understood that the process for a successful exit from a life of prostitution is long term and could take years for each participant. There may also be those that will require them to be dependent on services for the rest of their life." Of course, those in jail are 100% dependent on government services.
The annual report also included results from a survey of 175 Dallas prostitutes. Here are some of the highlights.
Dallas is taking a novel approach to prostitution, as evidenced by this description of the program:The Dallas Police Department plans to start collecting DNA samples from truck-stop prostitutes on a voluntary basis to help identify the women if they are later reported missing, comatose or murdered.
The unprecedented endeavor is scheduled to begin early next year as a new phase of the department's 2-year-old Prostitution Diversion Initiative, which offers prostitutes a chance at rehabilitation, often as part of a criminal sentence.
It comes as authorities nationwide are increasingly working together and with the FBI to solve hundreds of murders along major highways that are thought to be committed by serial killers working as truckers.
Dubbed the High Risk Potential Victims' DNA Database, it will be funded and maintained by the University of North Texas Center for Human Identification in Fort Worth.
"These women who are essentially working a lot of these truck stops, they are ... high risk to be killed, to disappear," said Arthur J. Eisenberg, co-director of the UNT center.
He hopes the database eventually will be nationwide.
For Dallas Police Chief David Kunkle, the DNA plan is a logical extension of the philosophy of the DPD prostitute diversion program, which is that prostitutes ought to be treated as victims.
The Prostitute Diversion Initiative (PDI) was developed by the Dallas Police Department (DPD) in collaboration with multiple organizations to address this increasing problem of street prostitution. Instead of treating prostitutes as criminals, the DPD would approach them as victims, offering an opportunity for prostitutes to gain access to a comprehensive and multi-step in-patient and out-patient treatment program as an alternative to further victimization and continued involvement in the criminal justice system. Recognizing that violence and substance abuse outcomes characteristic of this vulnerable subgroup are points of common interest for criminal justice systems, social services, and public health, the PDI capitalizes on the participation of a broad range of organizations with multi-disciplinary expertise and key resources to understand the causes of high risk behaviors and ultimately inform more effective ways to reduce associated crime. Included in this collaboration are the Dallas County Sheriff’s Office, Dallas County Health Department, Parkland Hospital, courts, and Homeward Bound which takes the lead for over 45 social service and faith-based organizations. The overall goal is to provide those individuals engaged in prostitution, should they choose, a complete exit strategy from the sex trade industry.According to the PDI annual report (pdf), "More than 1,100 individuals, both men and women, have been identified by Dallas Police as engaging in prostitution at four major truck stops along the I-20 corridor." What's more, "Last year, 3,342 prostitution arrests were made in Dallas county alone," but those arrests didn't make a dent in the problem because they merely moved "the visible foot traffic from the streets into the big rigs. This unexpected result from conventional enforcement illustrates how prostitutes are able to quickly adapt to the environment and frustrate law enforcement." The county last year created a specialized prostitution court to handle these cases and administer the program.
At the end of the day, says Dallas PD, the strategy of arresting and jailing prostitutes hasn't reduced the problem. "Many, if not all, arrests resulted in only a temporary solution, due in part to the turnaround time of these types of offenses. Since prostitution is considered a minor offense, these offenders are one of the first to be released from overcrowded jails, essentially creating a revolving door to which prostitutes would return upon release to the only environment and option they believe they have for survival."
It's too early to judge whether this program works better than an enforcement-only approach, since "It is understood that the process for a successful exit from a life of prostitution is long term and could take years for each participant. There may also be those that will require them to be dependent on services for the rest of their life." Of course, those in jail are 100% dependent on government services.
The annual report also included results from a survey of 175 Dallas prostitutes. Here are some of the highlights.
Summary of Findings DemographicsPhysical Health Problems
- Current ages of participants ranged from 19-59 years old, with an average of 37 years.
- Sixty-seven percent of participants were African American
- Half completed at least a high school education or GED
- Nearly seventy percent were mothers
Mental Health Disorders
- Over half of participants tested positive for a STD
- Five new HIV cases were identified
- Twenty-three percent of participants reported high blood pressure
- Approximately ten percent of participants reported asthma and seizures
- One participant was currently using a colostomy bag
- Four of the participants reported having cancer
City Courts
- Sixty one percent of participants reported having a mental health condition
- Nearly twenty percent of participants reported having more than one mental health condition
- One third of participants reported major depression and bipolar disorder
- Twenty percent of participants have attempted suicide
- Thirteen percent of participants reported having schizophrenia
- Nearly three-quarters of participants were diagnosed on Axis I (DSM criteria)
- Over half of participants received diagnoses on multiple axes (DSM criteria)
Outcomes
- Seventy-nine percent of participants had citations pending warrant status
- In total, there were 4,397 citations pending warrant status
- Outstanding warrant fines totaled $1,979,109
- Six year back log on citations being signed into warrants
- Fifty four percent of participants were eligible for immediate diversion to treatment services
- Over half of those participants eligible opted for treatment
- Of those participants entering into the program, nineteen percent completed the initial recovery phase
- Seventy-six percent of participants entering PDI outside the night of initiative completed the initial recovery phase
- Of those participants completing the initial recovery phase, 90% have not returned to the street
- Twenty one participants were repeaters to the PDI
- All of the repeaters to the PDI have relapsed
Cross-examination by teleconference?
Robert Guest at Dallas Criminal Defense Lawyer has a post on a case out of the Dallas court of appeals which approved remote testimony via teleconference in a capital murder trial (see the opinion) because a witness who lived in Chicago was pregnant. The witness claimed hers was a high-risk pregnancy that prevented her from traveling or exerting herself, but no medical testimony was presented to support that claim.
Previously Texas courts have only allowed remote testimony in cases where the witness is terminally ill, says Robert, asking, "I'm no doctor, but from what I've gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn't the witness have been available later?" SCOTUS has held that the Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."
Teleconferencing is used in a variety of ways in the justice system, from supplementing inmate visitation to consultations with medical staff at TDCJ to approving negotiated plea deals for already incarcerated defendants. But it's taking that trend too far IMO to allow teleconferencing when a witness must be cross-examined. SCOTUS went partially down that path a few years ago by allowing child witnesses in sex abuse cases to testify remotely and IMO it's led to problems, for reasons identified in an example from a commenter on Robert's blog:
Previously Texas courts have only allowed remote testimony in cases where the witness is terminally ill, says Robert, asking, "I'm no doctor, but from what I've gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn't the witness have been available later?" SCOTUS has held that the Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."
Teleconferencing is used in a variety of ways in the justice system, from supplementing inmate visitation to consultations with medical staff at TDCJ to approving negotiated plea deals for already incarcerated defendants. But it's taking that trend too far IMO to allow teleconferencing when a witness must be cross-examined. SCOTUS went partially down that path a few years ago by allowing child witnesses in sex abuse cases to testify remotely and IMO it's led to problems, for reasons identified in an example from a commenter on Robert's blog:
I tried a case where a child complainant testified by CCTV from the same building. He called me Donald Duck, and the prosecutor Elmer Fudd, as he sat in a room full of toys and stuffed animals talking to a television that spoke back for the first time in his life. Despite this, it still took the prosecutor two hours of (permitted) leading questions to drag a scintilla of accusation from him. That six year old had no idea of the gravity and solemnity of the situation.Guest identifies some of the potential pitfalls with allowing this practice more widely:
This decision undermines, by a degree, the Confrontation Clause requirement that the US Supreme Court has been strengthening lately in the wake of its decision in Crawford. It's one thing to allow remote testimony for witnesses with terminal illnesses, but not just for convenience's sake, which seems like the net result when mere pregnancy becomes an excuse to avoid confrontation in life-or-death proceedings like a capital murder trial.In court cross examination is a great tool for discovering the truth. I can see, hear, and even smell the witness against my client. I've only conducted pleas via close circuit camera (jail chain in Bowie County) but never cross examined a witness.
Even in something simple as a plea there is no rhythm to the conversation. The cadence of dialogue is gone, broken up by "What did you say?" and "Can you repeat that?"
It doesn't sound like much but it's one of the ways I get to my client's version of the truth. I'm not sure I could get the same results with Skype. With a client hundreds of miles away from the jury and me I would be at a disadvantage. What comes to mind first is exhibits. What if I wanted to ask the witness to read something? Or demonstrate something?
What about demeanor? You can't tell much about a witness from a grainy head shot. For example, many cops testify with their notes in their lap. Something you couldn't see via web cam. Finally, with me on a TV set they can control my volume and presence to the witness. Crescendo has less impact when the witness is starting at me through a netbook.
Monday, November 02, 2009
Prosecutorial hubris, entitlement on display in recent cases
The National Law Journal published an op ed today by Bennett Gershman criticizing the Texas Court of Criminal Appeals and Collin County prosecutors for using procedural excuses to avoid addressing egregious judicial and prosecutorial conduct in the Charles Dean Hood case, where the judge and prosecutor were engaged in an extramarital affair during Hood's capital murder trial. Gershman says too often prosecutors and judges rely procedural excuses to dismiss legitimate defense claims, even in actual innocence cases:
These two cases are thematically linked by prosecutorial attitudes of entitlement and hubris. Where are the voices among elected District Attorneys saying this kind of behavior can't be tolerated? Who really believes that prosecutors needn't be held accountable for framing innocent people, or that prosecutors and judges may have sexual relations during trial so long as they successfully conceal it from the defense until years afterward? How can anyone truly trust the justice system when stakeholders routinely defend such corrupt and abusive practices?
Of all the gamesmanship that prosecutors routinely play, one of the most alarming is to aggressively raise hypertechnical and attenuated procedural obstacles and hurdles that a defendant must overcome in order to get a court to listen to his often meritorious claim that the prosecutor committed misconduct. Indeed, the U.S. Supreme Court has characterized such prosecutorial conduct as "gambling" and "playing the odds" with a defendant's rights, playing "hide and seek" to avoid disclosure of exonerating evidence, and requiring a defendant to engage in "scavenger hunts" to find exonerating evidence of which the prosecutor is secretly aware but has suppressed.Hood's case must be one of the worst examples of prosecutors seeking (and usually, procuring) procedural excuses for tolerating official misconduct, but it's hardly an isolated instance. Later this week the US Supreme Court will hear oral arguments to decide whether there is a "freestanding constitutional right not to be framed," as the Washington Post editorial board put it this morning. Prosecutors in that case say there is not, including the National District Attorneys' Association. (See briefs pro and con on the SCOTUSWiki page.)
Thus, knowing full well that a defendant's claim is legitimate and meritorious, prosecutors regularly argue that the defendant failed to raise his claim earlier, as with Hood, even though the prosecutor well knew that the defendant could not raise the claim because he did not have the information that, brazenly, the prosecutor had suppressed. Some prosecutors have sought to deflect post-conviction claims of innocence by arguing that the defendant pleaded the wrong theory, or failed to use the correct nomenclature to describe the violation. And too many courts have endorsed the prosecutor's arguments. There are limits to this judicial deference. A few terms ago, in Banks v. Dretke, the Supreme Court reversed the U.S. Court of Appeals for the 5th Circuit, which had endorsed another Texas prosecutor's gamesmanship. In a death penalty case, the prosecutor argued that the defendant failed to differentiate sufficiently between his distinct legal claims — in effect, he "didn't say 'Simon Says.' "
Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleading requirements — for example, the Supreme Court's decision last term in Ashcroft v. Iqbal — defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.
These two cases are thematically linked by prosecutorial attitudes of entitlement and hubris. Where are the voices among elected District Attorneys saying this kind of behavior can't be tolerated? Who really believes that prosecutors needn't be held accountable for framing innocent people, or that prosecutors and judges may have sexual relations during trial so long as they successfully conceal it from the defense until years afterward? How can anyone truly trust the justice system when stakeholders routinely defend such corrupt and abusive practices?
AG thwarting transparency on justice matters
I'm incredibly disappointed at recent trends developing over at the Texas Attorney General's Open Records division. For the first several years after Greg Abbott became Texas AG, he was a staunch open government advocate - much better, frankly, than either John Cornyn or Dan Morales before him. Lately though, on criminal justice matters, the Texas AG has been issuing decisions that fly in the face of the plain language of the Public Information Act.
An excellent example can be found in an op ed this morning in the Houston Chronicle from Texas Appleseed's legal director complaining that Abbott's office ruled against forcing school districts to disclose use of force policies for police officers they employ. Writes Deborah Fowler:
An excellent example can be found in an op ed this morning in the Houston Chronicle from Texas Appleseed's legal director complaining that Abbott's office ruled against forcing school districts to disclose use of force policies for police officers they employ. Writes Deborah Fowler:
many parents may be surprised to learn that campus police officers in some Texas school districts are using tasers, pepper spray and other forms of restraint to handle these types of incidents. At Manor High School north of Austin, 12 students were treated for exposure to pepper spray last week after police used the spray to break up fights. Last April, six students at a Dallas high school were hospitalized and the school evacuated when pepper spray, used to break up a fight between two students, got into the school's ventilation system.Two months earlier, some Edinburg school board members expressed surprise that a school district police officer was allowed to keep his job after video showed him dragging a sixth grade student by handcuffs.
Can it happen in your child's school? Answering that question just got harder with the recent release of brief opinion letters by Texas Attorney General Greg Abbott supporting efforts by Spring Branch ISD and San Antonio ISD to keep their policing policy off limits to the public — no explanation given.
There's just no excuse for keeping these records from the public. The law enforcement exception to the Public Information Act simply doesn't allow police departments to keep use of force policies secret, whether or not the officers work for a school. Information about individual incidents may be another matter, depending on the circumstances, but the policies are public records, and should be.
Appleseed should sue to obtain these documents - this is a terrible precedent to set.
Similarly, Abbott is helping Governor Perry keep secret memoranda related to the Todd Willingham execution, even though he approved release of the same documents related to Gov. George W. Bush in 2003. The Houston Chronicle is suing to gain access to those documents.
One of the downsides of the decline of daily newspapers over the last 20 years is that fewer entities out there have resources to sue over open records when the Attorney General makes politicized rulings like these that don't comply with the act. Most individuals don't have the means to take on the government in an extended legal fight. That means nonprofits like Texas Appleseed need to pick up the slack or there won't be any institutional players out there protecting the public's right to know.
This isn't a partisan issue: When the last Democratic AG was in power, Dan Morales, he was much worse than Abbott on open government. In general, those in power would prefer that us plebians can't know what they're doing and why - it's always been thus no matter which party is in charge. That's why, IMO, stewardship of the Public Information Act is arguably the single most important duty of the Texas Attorney General. Abbott risks tarnishing his legacy on transparency with these recent decisions, not to mention setting bad precedents that could end up sticking when requestors don't have resources to sue for the records.
Sunday, November 01, 2009
Bizarro allegations against TYC Ombudsman center on contraband smuggling
Many readers have asked what I think about the bizarre story regarding Texas Youth Commission Ombudman Catherine Evans, a former juvenile court judge from Dallas who is under fire for smuggling contraband - allegedly including weapons, cash, a cell phone, and prescription drugs - onto TYC facilities. This was first reported while I was out of town and for the life of me I still can't figure out what was going on or why in heaven's name Judge Evans would do such an unabashedly stupid thing.Evans claimed she was "testing" security at TYC units - she supposedly brought contraband onto 2 or 3 other units before she was caught at Crockett - but that's not the role of her office and it would be easy to document lax security without resorting to such methods. The previous ombudsman raised the same issue without engaging in those sort of grandstanding ploys. What was this woman was thinking?
One source told me one of the weapons was a knife (found at Crockett) and that she also allegedly brought a handgun onto another facility (which possibly was "fake," I was told). There was speculation by a different person that the drugs she allegedly brought onto facilities were "fake," and that investigators were having the substance tested. Quien sabe?
I was also told that the Inspector General's office is "very serious" about pursuing a case against Evans - that her explanation about "testing" security may not be enough to forestall her eventual prosecution. That'd be something, wouldn't it? It'd be amazing if they wound up prosecuting the Ombudsman, whose position was only created in 2007, before they prosecute TYC employees alleged to have sexually abused kids at the West Texas School. What a mess!
Mike Ward at the Austin Statesman had some interesting backstory regarding how this came to light:
Evans was found to be carrying a weapon and other prohibited items as she entered the Crockett State School, according to Susan Moynahan, the deputy ombudsman who served as interim director before Evans arrived. Evans was asked to leave the facility.Moynahan resigned Oct. 8 after telling Perry's office about the Beaumont episode. The ombudsman reports to the governor, not Youth Commission officials."Although it is unclear by your report what type of weapon you carried into the facility you reported that you intentionally brought contraband into a facility, which is a felony, and could have resulted in arrest and endangered the lives of youth and staff at that facility," Moynahan's resignation letter states. "In addition, to report this behavior within a site visit report would no doubt result in extremely negative repercussion" for the ombudsman's office.Moynahan told the American-Statesman she has been interviewed by Youth Commission investigators. "Carrying a weapon onto a correctional facility? This is insanity — not to mention it's a crime," she said. "If she was trying to test security, this is not how you do that. State employees are not above the law."Youth Commission Inspector General Chris Love did not return a message. But Townsend said she knew of no approved sting for Evans to test security.
So the deputy ombudsman ratted Evans out and resigned over this early last month! Perhaps Ms. Moynahan will get a chance to explain to a legislative committee at some future date exactly what's been going on behind the scenes at that office. (Certainly Judge Evans will, if she doesn't resign her position first.) There's a lot more to this story, one suspects, than has been revealed so far in media accounts.
RELATED: While it's true as mentioned above that the former TYC employees from the West Texas State School accused of sexual abuse have not been brought to trial, a former staffer from Brownwood was sentenced last week to 54 years for sexually assaulting three teenage girls at the Ron Jackson unit. According to the Abilene Reporter News, four other former TYC guards from Brownwood are currently facing felony charges.
Subscribe to:
Posts (Atom)
.jpg)
