Indigence defense newsletter highlights

While I was away the Task Force on Indigent Defense came out with its quarterly newsletter in August. Here are some highlights:

• From the Timothy Cole Advisory Panel on Wrongful Convictions: Report and Research.

• Anyone interesting in the job of chief at Harris County's newly authorized public defender officer has until Friday to turn in their application. See here.

• Here's an informative fact sheet from the Task Force on their expanding Regional Capital Defenders Office, which is expanding into South and West Texas and ultimately will operate statewide where counties have opted in. 

• "The Task Force also approved over $500,000 to Montgomery County to establish a managed assigned counsel program to provide direct client services to indigent persons with charges pending and with documented mental health issues. The county will contract with an attorney-led, non-profit agency to provide case management services, as well as specially trained and supervised attorneys to these defendants. The program in Montgomery County will be one of the first of its kind in Texas."

• This summer, Texas submitted an application under a new federal program which provides student loan repayment assistance for prosecutors and public defenders.

• Bexar County indigence defense review:

"In December 2009, Senator Jeff Wentworth asked the Task Force on Indigent Defense to conduct a full assessment of Bexar County’s indigent defense processes. The work has been completed and was submitted to Bexar County officials on August 16th. The purpose of this request and assessment was to determine the effectiveness of Bexar County’s indigent defense processes and to determine whether local processes are in compliance with the Fair Defense Act.

"The Task Force, in collaboration with the Office of Court Administration, interviewed representatives from various departments in the criminal justice system, observed a variety of court proceedings, and examined indigent defense records to determine whether local processes and practices comported with the requirements of the Fair Defense Act and Task Force rules.

"The County response is due October 22, 2010."

Keller appeal marked by byzantine legal debates

This afternoon I attended Sharon Keller's appellate hearing mentioned earlier today on Grits, and I must say I don't envy the three justices charged with deciding the obscure, narrow legal issues before them. The legal arguments were so byzantine nobody seemed to completely grok how all the different rules and statutes worked together, and it seemed to me the simplest solution might be for the court to remand the case back to the State Commission on Judicial Conduct for the equivalent of re-sentencing.

The hearing was lightly attended - just 21 people in the audience that I counted, including myself and three reporters (at least who I could identify). Quite a few of the others in attendance were employees of the attorneys working the case or the SCJC, plus a handful of anti-death penalty activists who'd been protesting with placards outside before the hearing began.

The justices shut down fairly quickly Keller's attorney Chip Babcock's efforts to reassess the merits of the case (he accused attorney David Dow of "lying" several times and declared at one point, "This is all a media creation based on a series of lies"). Instead the discussion mostly focused on whether the State Commission on Judicial Conduct improperly imposed an excessively lenient sentence on Judge Keller - giving her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office.

At the hearing before the Commission on Judicial Conduct earlier this year, it was Keller's attorney whose arguments suffered from "bad facts." Today it was the SCJC's attorney Mike McKetta who was more on the defensive, trying to explain why the Commission failed to follow its own written procedures distributed to judges about how such cases are handled and why SCJC Executive Director Seanna Willing had made public statements that seemed to support Keller's arguments about the proper range of punishments. See these prior Grits posts for more on that controversy:

• Texas Supreme Court to review 'lawless' leniency for Keller by Judicial Conduct Commission
• Special treatment for Keller may create 'bad law' around judicial misconduct
• More backstory on Keller public warning
• Three options in Keller case for Judicial Conduct Commission

The debate was confusing and confused even for the principals and the three jurists, mainly because the portions of the Government Code and the Supreme Court rules governing the process clearly never countenanced this situation. In some instances they plainly contradicted one another or used the same terms in different ways, particularly the word "sanction." (I stopped in at the Senate Criminal Justice Committee offices after the hearing to suggest they review the record from the proceedings and consider updating the Government Code to account for the inconsistencies identified this afternoon.)

McKetta made a somewhat persuasive argument that the broader array of punishment choices were justified. The portion of the Constitution Keller cited, he pointed out, listed censure or a recommendation for removal as the only possible outcomes, though everyone acknowledged that "dismissal" was also an option, which in fact was the outcome the Judge was pushing for. McKetta cited other examples where the Texas Constitution used the word "or" in that way - not to say definitively either-or but in a more de-limited fashion. But in this writer's non-lawyerly view, Keller's arguments were more persuasive that the leniency given her by the Commission in light of the damning findings of fact was probably improper.

Which brings us to the question: What now? Keller's attorney argued that the justices should simply dismiss all charges and that the Commission's ruling was "void" because they'd overstepped their authority. But two of the three justices expressed reservations on that score. Justice Elsa Alcala pointedly asked Babcock what they should do if they found the Commission's decision was "erroneous" but not "void." He insisted only the latter result was acceptable, and I found myself wishing they'd asked the same question of Mr. McKetta. I asked him myself after the hearing, but he refused to comment, adding, "You're asking the right question, though."

It's hard to guess the next move. The judges could outright dismiss the charges as "void," affirm the Commission's strange, "lawless" leniency and move forward with the appeal, or potentially (an outcome that wasn't discussed but which wouldn't surprise me) kick the case back down to the Commission with an order to pick a punishment from the three, constitutionally approved options.

To their credit, it didn't appear from the questioning that the justices involved came to the table with any preconceived notions about the outcome, which one certainly couldn't say for Special Master David Berchelmann who presided over the original fact finding in Keller's case. But these would be hard questions for anyone to answer. As I said, I don't envy them their task and I certainly didn't leave the room feeling as though there was an obviously "correct" decision I could easily identify. Quien sabe? We'll know soon enough, I suppose.


UPDATE: The Austin Statesman reports the three-judge panel will issue its decision by Oct. 8.

Reining in bad cops in Dallas: A good start but an intractable situation

An unwritten rule among many police officers and agencies is that suspects who run from the cops get a beating, which is what happened recently in Dallas according to dash-cam video which showed officers "beating motorcyclist Andrew Joseph Collins with a baton and fists as he appears to be giving up after a brief, high-speed chase through southern Dallas." In response, one officer has been fired, criminal charges have been referred to the District Attorney on the fired cop and two others, and three more officers remain under investigation by Internal Affairs, according to this memo on the case published at the Dallas News Crime Blog. The News editorialized:

More than unprofessional, this sort of policing is disgusting to a reasonable person and embarrassing to an entire city, if not worse.

But Police Chief David Brown didn't circle the wagons behind the stereotypical blue wall of silence. He acted on an anonymous note about the officers' misbehavior and then delivered an unmistakable message that his officers can't act beyond what is reasonable and necessary to make a lawful arrest. And that especially includes an angry, frustrated officer apparently plotting to rough up a suspect or police lying in official reports about the incident.

This newspaper is saddened that these officers betrayed public trust, but heartened that Brown acted to restore it in such a forthright manner. He methodically reviewed the videos and pressed for a criminal investigation. He fired one officer and asked the FBI to investigate whether civil rights had been violated. He calmly urged community restraint and even visited the home church of the motorcyclist's family to assure citizens that justice would be vigorously pursued.

The News opined that the "courageous officer whose note revealed the troubling behavior also deserves Dallas' thanks," and I wholeheartedly agree. But one notices that nameless officer was starkly in the minority: Many more cops participated in the beating and the cover-up than leapt to report it (investigators reviewed seven dash-cams from the scene), and the only one willing to say something did so anonymously, obviously fearing retaliation from his co-workers.

The Chief partially blamed the problem on inexperienced officers working by themselves: "All of the officers implicated in the arrest have been on the force for less than three years. The city has hired nearly 1,200 police officers in recent years and Brown has previously acknowledged concerns about a patrol division full of young and inexperienced cops, including the officers doing the training," reported the News. Brown said he wants to "review ... our pairing of our young officers with each other, the experience levels of our field training officers and our current transfer system."

Notably, even officers not involved in the beating violated departmental policy: "A sergeant ordered the officers not to chase, in accordance with the department's strict chase policy. But they chased anyway, weaving through residential streets and through stop signs." One wonders whether officers violating the department's chase policy will also face punishment?

Brown deserves commendation, but most of the lessons to be learned here are troubling: Apparently Dallas police feel free to ignore their supervisors and departmental policy, most of them cover up for one another's misconduct, even when it's egregious, and the few officers willing to do the right thing fear retaliation from their peers. Chief Brown should be lauded for taking a bold first step toward holding officers accountable, but I'd be happier still if it weren't so painfully obvious that most Dallas cops - at least judging from the sample involved in this episode - don't appear to share the chief's view that this kind of behavior is unacceptable.

MORE: These weren't the only bad cops fired in Dallas recently. Chief "Brown announced that the department will begin randomly reviewing dash-cam video from patrol cars and that he is considering enhanced ethics training for about 1,400 recently hired officers."

Resources wasted on harsh punishments, registration for low-risk 'sex offenders'

While I was away Jordan Smith at the Austin Chronicle published an excellent story on wasted law enforcement resources devoted to Texas' sprawling sex-offender registration program. Here's a notable excerpt:

The original idea for increasing penalties and restrictions, and for creating the public registry, was that harsh punishment and the public branding of offenders would enhance public safety – saving children, especially, from falling victim to sexual predators. In practice, however, the rapid expansion of crime and punishment in this area of the law has created a clumsy system that has diluted those original intentions beyond recognition. As of March 1, there were nearly 63,000 persons on Texas' public database administered by the state's Department of Public Safety, which adds roughly 100 new names to the list each week. The database includes not only serial rapists and pedophiles but also thousands of offenders ... whose conduct, while considered criminal because the girls involved were younger than the legal age of consent (in Texas, that's 17), is hardly as alarming as that of a middle-aged man with a demonstrable sexual penchant for prepubescent girls – the sort of predator that in theory the laws target.

The registry now includes not only these "Romeo and Juliet" cases – youthful, consensual relationships – but others caught in the criminal justice web for things such as indecent exposure (which also includes the "poor drunk" popped by police while urinating behind a 7-Eleven in the middle of the night, says attorney Bill Habern, a veteran Texas pardon and parole specialist); it has never been retooled to differentiate among offenders and their offenses. So the crimes of serial rapists and pedophiles have been conflated with much more minor offenses under the catch-all term "sex offender," leading many to believe that everyone listed on the registry is in fact worthy of continuing public scorn and fear. "The public in general only hears, 'He's a registered sex offender.' Through ignorance, they believe that is synonymous with 'sexual predator,'" says Austin Police Department Lt. Greg Moss. "Registered sex offenders are not only sexual predators."

An expert on the enforcement of the state's sex offender laws, Moss is the former supervisor over the APD's Sex Offender Apprehension and Registration Unit, a three-detective squad tasked with keeping track of more than 1,500 sexual offenders registered as living in the city of Austin – including Henry. Of those on Austin's list, Moss estimates that just 10% are "your sexually violent predators," those folks who "we should be proactively monitoring, to ensure they're abiding by probation and parole." But APD is responsible for monitoring everyone on the list – a task that is expensive and time-consuming and has very little, if any, positive impact on public safety.

Instead, a growing body of research on the effect of broad sex offender laws reflects that requiring thousands of individuals to register for increasingly long periods of time actually undermines public safety. "That's what the current science is telling us," says Liles Arnold, a sex offender treatment provider and chair of the state's Council on Sex Offender Treatment. Moreover, research also reflects that the restrictions placed on individuals by the municipalities in which they live – such as barring individuals from living near schools, parks, or in a home with young children, even if they're the offender's own children or siblings – create extensive collateral damage. "There are a growing number of registrants, not just in Texas but across the country," says Arnold. But there's no "delineation of who is dangerous or not."

You've been warned: Final Keller appeal up today

The special court of review evaluating the State Commission on Judicial Conduct's warning of Texas Court of Criminal Appeals Judge Sharon Keller will be held this afternoon at 1:30 at the Texas Supreme Court here in Austin, I learned from the Texas Moratorium Network. According to the Montgomery County Courier: "Justice Charles Kreger, of the 9th state Court of Appeals, was selected, along with 2nd state Court of Appeals Justice Terrie Livingston and 1st state Court of Appeals Justice Elsa Alcala, to hear Keller’s motion to dismiss a public warning the State Commission on Judicial Conduct gave her July 16."

Here's a link to all the documentation in Judge Keller's case, including the judge's motion to dismiss the charges and the Examiner's response. If I finish a couple of other things on my plate this morning I'll try to get up there to listen to oral arguments. Interestingly, Judge Keller complains that:

Even when conducted flawlessly, judicial disciplinary proceedings skirt the edges of due process: the SCJC acts as police, grand jury, prosecutor, judge, and jury, because it investigates alleged misconduct, brings charges, prosecutes cases, rules on motions, and determines punishments; allegations against judges are made anonymously; discovery is limited; judges may be punished without a hearing; judges have no right to confront their accusers; judges have no right to a jury trial and limited appellate rights; and the SCJC’s deliberations and votes are secret.

In her case, says Keller, "The SCJC has run amok." Ironically, though, if the SCJC erred, she argues, it was in giving her a lighter sentence than a formal "censure," which would have forbade her from sitting as a visiting judge once she leaves office. Judge Keller has been inexplicably harming her own interests by pursuing this: A public warning is hardly even a wrist slap and her case would have been long-forgotten by the press and the public by now if she didn't keep filing these spurious appeals. It's a good thing she's got those millions of dollars worth of assets she failed to report the the Texas Ethics Commission because I'll bet her legal bills will amount to a small fortune.

The examiner retorts that "The essential facts underlying the Commission's order come principally from Judge Keller's own testimony, and are largely ignored in her partial selection of facts." For example, a footnote points out that:

Judge Keller complains that an "oral protocol" cannot be a duty of her office. Her prior testimony, however, admits that the Execution-Day Procedures included the word "shall"; that "the word shall to [her] has always meant a mandatory word"; that the Execution-Day Procedures required "all communications" - whether "administrative, procedural, substantive or otherwise" - concerning that day's scheduled execution "first to be referred to the assigned judge"; and she informally referred to the assigned judge under the Execution-Day Procedures as "the duty judge." (citations omitted)

Mainly Keller is unhappy that, in her words, the Commission was "Unwilling to accept Judge Keller’s victory at trial before Judge David Berchelmann in August 2009." But the examiner replied that "The Commission has the authority to 'adopt,' to 'modify' or to 'reject' findings of the Special Master, either on objection by a party or at the Commission's own initiative."

Deference to findings does not prevent opportunity to review findings. The Examiner's principal objections to the Special Master's findings were these: (i) that he devoted most of his findings to the conduct of others, whose conduct and decisions and choices were not known by Judge Keller at the time she chose to disregard her responsibilities under the Execution-Day Procedures, and therefore cannot be any basis for excusing her choices and her conduct; (ii) that he had not made findings one way or the other as to many factual issues presented by the parties; (iii) that he failed to give adequate effect to Judge Keller's remarkable and emphatic testimony that, presented with the same circumstances, she would do nothing differently today; and (iv) that he exceeded his role by making recommendations as to sanctions, if any.

Keller also says, with somewhat more justification, that the Commission "imposed on Judge Keller a punishment so far outside its authority that the SCJC’s Executive Director and Examiner publicly admitted that 'the order . . . does not comport with the Texas Constitution.'” Jeff Gamso commented that:

She seems to be right about at least one of her procedural claims.  It seems pretty clear that the Commission had no authority to issue the warning she received.  It's choices were to dismiss the charges or impose a more serious sanction. 

However, as I'd pointed out earlier, while the SCJC's Executive Director did make comments to that effect in the media, she flip flopped on the question soon thereafter:

Interestingly, Executive Director Seanna Willing has changed her stance. The agency's position appears to be fluid, perhaps because of disagreements between commissioners and the executive director.Willing had earlier argued that the Commission acted outside its authority to "warn" Keller instead of issuing a formal "censure" that would have barred her from acting as a visiting judge after she leaves the bench. Now she argues - with Examiner Mike McKetta who has consistently maintained the warning was okay - that the Commission could legally give the lesser sanction, while ironically Judge Keller argues that the Commission had no authority to issue a "warning" as punishment. Willing has flip flopped and Keller has adopted her former stance. Weird.

Who knows? The fact is judges are so seldom disciplined in Texas that these musty appellate procedures aren't often used and nobody really seems to have a handle on how to appeal a meaningless "warning," since of course appealing such a sanction-free sanction would never occur to most right-thinking people. What an absurd waste of time and resources.

Name names, please

Michael Landauer at the Dallas News wrote a telling post reacting to Jeff Blackburn's lament on Grits while I was gone about why eyewitness ID reforms, which seem obvious to anyone paying attention, can't seem to gain traction. He declares that:

Candidate interviews have been interesting this year in a very unexpected way. Two examples. In one race for a criminal court, a longtime prosecutor talked about his stellar record. He never lost a case, essentially. I asked him if, knowing that we have had wrongful convictions, that bothered him. He went silent for about 15 seconds and offered a very thoughtful response. He was confident the system worked in almost every case, but he did have some eyewitness-only cases, and those troubled him.

Then, yesterday, we had a state rep candidate in who was attempting to address some criminal justice issues. She uttered the words that "eyewitness is, of course, the ultimate ..."
The ultimate what, I asked, thinking she meant to finish the thought by saying "ultimate area where mistakes happen." Nope. She said it's the "ultimate proof of a crime." She went on to say that if she sees someone do something, she knows they did it.

Wow. Just. Wow. 

Landauer thinks reforms haven't been implemented because people are "shamelessly ignorant of what is really happening," but he acknowledges Jeff's point that the politicians who made and enforce the laws refuse to admit they likely sent innocent people to prison, perhaps even a lot of them. He concludes that the problem is a "toxic mix of ignorance and stubbornness," but fails to name the state rep candidate who made such a foolish comment or the prosecutor who didn't mind sending folks to prison based on a single eyewitness. After all, if the media isn't telling voters who are these "ignorant" or "stubborn" pols, how can we prevent electing them?

Perhaps the Dallas News editorial board is waiting for their endorsements to reveal which politicians are promoting policies and ideas that help send innocent people to prison, but it sure seems like that's information they might want to share with readers instead of protecting those too ignorant or stubborn to acknowledge what's going on.

Milton in Paradise Lost wrote that "they who have put out the people’s eyes, reproach them of their blindness." With all respect to Michael and others at the News, there's some of that going on here. If the problem is "shameless" ignorance, surely the media sources through which most folks get their information are also partially to blame? It's easy to point fingers at politicians - hell, it's a national pastime - but mainstream media too frequently play into false assumptions about the justice system, including the Dallas News, and that's also a big part of the problem.

Spelman: Austin police soak up too much of local budget

Thanks to Austin City Councilmember Bill Spelman for making a point that our capital city media have been loathe to acknowledge over the last decade, as reported in the Austin Chronicle:

"Over the last 10 years, public safety spending per person, in real terms, has gone up by nearly 50 percent since the year 2000," a 45% increase from $365 to $529. "Spending on everything else in the General Fund, has gone up by 2 percent since 2000," from a little over $175 to $178.

"We've taken all the new money we've gotten from property taxes, sales taxes, and what have you, and put it all into public safety. And none of it into parks, libraries, health and human services, development services, and so on. It's all gone to public safety. That kind of big decision is not the sort of decision we ever have the chance to make on budget day. That sort of decision is basically made by the city manager and staff and department heads, way in advance of when we get to pass the budget. And that decision is so big, involving so many millions of dollars, that we simply don't have the opportunity to move that stuff around. So council and the public need to get involved in these big budget decisions well in advance of Sept. 13."

The police union in Austin basically manipulates the Mayor and the majority of city council members like marionettes, which is why Austin has pitiful public transit, can't afford upkeep on parks, relies on criminal laws instead of housing and case management to deal with the homeless, reduced General Fund revenues for HIV treatment last year despite rising incidence rates, has never completed land purchases for the Balcones Canyonlands Conservation Plan, but has the highest paid police officers in the state and arguably (when compared to the cost of living) the nation.

The Austin City Council included 48 new police officer positions in the 2010-11 budget, bringing the total to 1,669 sworn positions compared to 1,215 in the 2000-01 budget (source). That's an increase of 37.4% during a period when Austin's population increased by just 19.7%. Over the same period, crime nationwide has declined, but Austin keeps larding on more and more police officers at ridiculously high wages.

This one-sided irrational exuberance must cease. That means putting police salaries back into the budget process instead of negotiating them separately so that the biggest part of the budget is set in stone every year before it's even drafted. It also means remembering that police represent just one aspect of public safety, and that other programs and services may actually make us all a lot safer at a much lower cost. Finally, voters must begin to hold City Council accountable for ill-considered budget decisions at election time instead of rewarding perennially misplaced priorities.

Dallas constables' traffic units on chopping block thanks to budget crisis

In the bloated, over-funded arena of criminal justice, budget crises may frequently succeed in forcing politicians to focus on public policy over special interests where rational arguments have failed. Such is the case with constables' offices in Dallas County, where commissioners will likely vote Monday to eliminate 80 positions devoted to traffic enforcement. Though constable deputies facing job loss accused the commissioners court of retaliating against whistleblowers, reported the Dallas News ("Livid Dallas County DA Craig Watkins fails in bid to save jobs from budget ax," Sept. 14):

Commissioner John Wiley Price, who has opposed the Defenbaugh investigation, said there is no attempt to retaliate against those who spoke up.

"That has nothing to do with it," Price said. "I don't know where they worked – whether it was traffic or civil [divisions]. We have no way of knowing who spoke to [investigator Danny] Defenbaugh."

In Defenbaugh's reports, witnesses who were interviewed are referred to by coded numbers. County officials say that was done to protect them.

Price said the constables can "write all the tickets in the world," but that the collection rate for those tickets is very low. As a result, the traffic units more or less break even each year, county officials say.

"It's just a business decision," Price said about the constable cuts. He and fellow commissioners Maurine Dickey and Mike Cantrell have sufficient votes to eliminate the traffic deputies.

Commissioners have slowly whittled down a $60 million budget shortfall in the $450 million general fund with cuts to every county department. Eliminating the 80 traffic deputies would save the county about $2 million, officials say. Commissioners can only eliminate positions. They cannot target individual deputies.

If the cuts were narrowly targeted at the 3-4 deputies who reported wrongdoing, I'd certainly be against the firings. But the idea that commissioners - including those who opposed the investigation - would eliminate 80 positions just to go after a handful of whistleblowers makes little sense. I feel sorry for the individuals who may lose their jobs, but from a public policy perspective it's the right move.

The fact is, constables' offices frequently suffer from a relative lack of competence and professionalism, as evidenced by 5,600 old warrants recently found in a box at one Dallas constable's office that were never entered into the computer system. Dallas Sheriff Lupe Valdez also recently questioned the relative physical fitness of area constables.

This blog has long held that it's unwise and wasteful for constables to take on everyday policing duties normally performed by municipal police and sheriffs' deputies. In Dallas, traffic enforcement has frequently come at the expense of constables' traditional duties like serving papers in civil proceedings. That's redundant and expensive for taxpayers, but it's taken a budget crisis to get Texas counties to reconsider this ill-conceived trend.

The chance to shake up distended, anachronistic government agencies like constables is a silver lining to the current budget crunch, and I hope Dallas isn't the only county taking the opportunity to scale back tumid constable budgets.

Airport security, Kurt Cobain, and the Fourth Amendment

Yesterday Kathy and I flew back into the United States from what turned out to be a wonderful, much-needed and delightfully relaxing vacation - London, Berlin, visiting friends in a national park in northern Germany, then to Barcelona for 9 days of sun, surf, and sightseeing. Our return flight(s) took us from Spain through London, then Toronto before finally making it home to Texas.

For our big travel day home I found myself wearing an old t-shirt with an excerpt from the Fourth Amendment to the US Constitution emblazoned on the front: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." I didn't wear it to make any particular statement, it just happened to be the last clean shirt in my backpack, which was otherwise jammed with sand-covered laundry, assorted toiletries and tourist acquisitions, plus a small stack of books including several novels that I read while we were gone. (It was a welcome joy, I should add, to pull my head, for the most part, out of all the criminal justice topics covered on Grits and spend time reading good fiction.)

Anyway, as I trudged through the airport in Toronto, weary, jet-lagged and quite ready to get home, the Fourth Amendment shirt turned out to be quite the conversation starter. Fellow travelers standing in the security line first commented on it, noting the irony that we were all about to take off our hats, coats, belts, shoes, run all our belongings through an x-ray and submit to metal detectors and possible pat-down searches in order to enter the country.

One older man with apparent Tea Party leanings (judging by further, unrelated conversation) declared that if police tried to enter his home without a warrant they'd get their brains blown out with a .44 magnum. I reminded him that may turn out to be a bad idea, citing poor Kathryn Johnston's case out of Atlanta. Police broke down the 92-year old woman's door one evening in 2006 based on a "no-knock" warrant obtained with information from an unreliable (or perhaps non-existent) informant. Terrified, Johnston cut loose with a shotgun at the intruders and was gunned down by police, who tried to plant drugs in her house after they realized their error.

That tale reduced his macho bluster a bit, though he couldn't resist suggesting that such incidents might be expected more frequently under Barack Obama's presidency. I retorted somewhat disdainfully that Mrs. Johnston's death occurred on George Bush's watch, and that such incidents occurred long before Mr. Obama hit the scene and would likely continue long after. (I'd love to have heard the fellow's views if he had a chance to read Radley Balko's work on SWAT teams and police raids.) By this time others in line were listening in and also commenting on my t-shirt, with more folks further back in the zig-zagging queue straining from afar to read its text.

I wasn't really in the mood for a political conversation and was rather relieved to reach the front of the line where we handed over our passports and customs declaration to a grossly overweight US customs agent. We answered his annoying, routine questions and watched as he perfunctorily stamped our passports, then I noticed the fellow peering over his glasses at my chest, muttering the strange words to himself in a barely audible whisper as he read them.

"That's a great t-shirt," he announced with a grin, "I'm a big fan of the US Constitution, especially the Second Amendment. You know, I took an oath to uphold and protect the Constitution when I took this job," he added, "and if you ask me, these days the biggest threats are coming from within this country instead of outside it, if you know what I mean." I had in fact not asked him, but I nodded my head in agreement, even though one imagines he and I likely disagree over exactly what internal threats the Constitution presently faces.

I told the fellow I considered it rather like wearing a Kurt Cobain t-shirt, commemorating something that's dead and anachronistic, however laudable or memorable for those of a certain age who could still recall when it was relevant. This elicited a loud belly laugh. "It's not that bad," he replied with a big grin. "There are still plenty of people like me sworn to protect your rights." "Oh, then y'all aren't about to make me go through a metal detector, take off my belt and shoes and x-ray my bag about 30 feet from here?," I asked as I watched passengers piling their belongings into trays to run through an x-ray before being herded like cattle in a feedlot through a metal detector. In the background, I could hear a woman plaintively, pointlessly arguing over the seizure of a bottle of hand sanitizer. The agent shook his head and sighed. "After 9/11, everything's changed," he lamented. "Anyway, welcome home."

At this point I should mention that as a practical matter airport security is largely a joke - pure security theater. A large number of people were staffing the US security point where we all had to pass through, though about half of them appeared to be standing around doing nothing of value, chatting to one another or chiding passengers for not arranging their belongings in their rectangular trays in just the right fashion. Three different people scanned my boarding pass, including before and after entering the metal detectors, as though it hadn't just been done by somebody else several feet away. A business traveler in line with us commented that he'd traveled all over the world for his job and that airport security took longer to enter the United States than in any other country, though he added that it might go quicker if all the people standing around aimlessly or triple-checking our boarding passes were actually helping process people through the system. I readily agreed.

The screen through which another overweight man was viewing people's carry-on baggage via x-ray was visible to me for much of the time I was in line. He looked bored, understandably, and while I was there he never once intervened to determine the contents of people's carry on luggage, even though it was impossible to tell what was in them given the jumble of items travelers were carrying. For example, my wife had accidentally forgotten to remove a pair of pointy scissors from her satchel that she'd been using to cut up brochures, postcards and pictures for a travel scrapbook she keeps whenever we go abroad. She discovered them once we were on the plane, but airport security had let them through without a hitch. At least that lady had been prevented from bringing on her hand sanitizer.

In reality, the best security comes from passengers themselves and alert airline staff, not from the army of underpaid bureaucrats pretending to keep us safe at the airport entrance. The reason the 9/11 hijackers succeeded was that before that tragic day, all plane hijackings had aimed to hold passengers hostage, but literally by the end of that day it was no longer possible for hijackers to take over planes with sharp objects. When passengers on the plane that went down in Pennsylvania learned other planes had flown into buildings, they stopped the hijackers themselves and would have prevented the plane's takeover in the first place if there'd been a history of such things when it happened. Similarly, the "shoe bomber" whose failed efforts now force all of us to remove our shoes in the airport was stopped by passengers who saw what he was doing and intervened. Ditto for the "Christmas Day bomber." The Government Accountability Office has found that airport screeners routinely miss guns, bomb parts, and other dangerous objects despite all the rigmarole.

It took about an hour to make it through the airport's security procedures and get to our gate. We arrived just before boarding began; more standing in line. At the end of the long hall headed to the plane, an Air Canada stewardess cheerfully welcomed me with a notable Quebecois accent before stopping for a moment to read my (apparently provocative) t-shirt and laughing out loud. "That's an appropriate shirt to wear to the airport," she said, smiling. A steward behind her looked too and grinned: "Ironic," he said, before looking at my boarding pass and pointing us to our seats.

"You're telling me," I replied, then shuffled obediently back to my seat, anxious to put the army of airport bureaucrats behind me and shift my thoughts away from these absurdist security procedures and bury my nose in an excellent set of short stories by Roald Dahl.

Scandalous state of city jails unlikely to change anytime soon

Brandi Grissom at the Texas Tribune reports that "Since 2005, 66 people have died" in municipal jails that are unregulated by the State Commission on Jail Standards, 40% by suicide. She quotes a warning from

James McLaughlin, the executive director and general counsel of the Texas Police Chiefs Association, [who] says city jails are so small and inmates stay there for such short periods of time that it would be unrealistic to apply county jail standards to municipal facilities. Plus, he says, it would be expensive. “You’d see a lot of those [jails] shut down,” McLaughlin says.

But of course, if tiny municipal jails can't operate safely, a lot of them probably should shut down. Grissom adds that:

At a recent meeting of the Senate Criminal Justice Committee, jail standards officials told lawmakers that city-run facilities should face more scrutiny. Currently, there are no monitored state standards in place for either construction of or conditions inside municipal jails. And there is no requirement that city jailers be trained or certified. Since 2007, the commission has received dozens of complaints about conditions in city jails, most commonly about sanitation, food, supervision and medical care. One of the most disturbing complaints the agency received was from an inmate who said that when she was arrested, an officer put her in a jail cell, handed her a cell phone and told her to call him if she needed anything. “The complainant was left locked in the jail cell with no supervision or contact … for three hours,” according to the commission's report to lawmakers.

With no authority over city jails, there’s nothing the commission can do about those complaints. 

Here's a telling example of how these jails currently oversee inmates in their care:

At the Senate Criminal Justice Committee hearing last week, Hedwig Village Police  Chief Dave Barber told lawmakers that he might have to shut down his eight-cell lockup if he had to meet the same standards as county jails. His small town is a Houston suburb, and at most, he said, he has about two or three people at a time in the jail. The longest anyone can stay there, he said, is 56 hours.

With so few people in his jail, Barber said, it doesn’t make sense to hire a full-time, licensed jailer. Instead, he keeps a timer in the station that is set to ding every hour. When the timer dings, an officer walks back to check on the inmates. If all of the officers are out on patrol, the dispatcher checks on the jail. And he said his wards are fed three squares a day — each one a McDonald’s Happy Meal. “It’s embarrassing to tell you this,” Barber told the committee. “But this is the way that most of us operate.”

Pitiful. Just pitiful. And we're supposed to believe such "services" are something municipalities just can't live without? What a crock. Barber's main argument for keeping the jail is that they'd otherwise have to pay the county for locking up the same inmates, but running jails costs money. Regrettably,

Combine the budget woes with the political power of city leaders and police chiefs who oppose municipal jail regulation and [Senate Criminal Justice Committee Chair John] Whitmire says he has no expectation that those facilities will face more accountability anytime soon. “If there are abuses, we have remedies,” he says. “We have civil rights laws. We have Texas Rangers. We have investigative bodies.”

It's too bad the Rangers, District Attorneys and other "investigative bodies" have been, and will likely continue to be, complicit in sweeping such problems under the rug instead of holding those responsible for abuse and neglect accountable. This may be a situation where civil litigation must drive up costs enough to make sending the inmates to county jails more financially attractive before (supposedly) responsible parties make what seems like an obvious decision: Cities that can't afford to adequately staff jails and provide medical and other services simply shouldn't operate them.

Forensic Science Commission wants to hear from arson experts, rebuffs Bradley

I just rolled back into Austin this afternoon, still a little jet lagged, to find that the Todd Willingham saga at the Texas Forensic Science Commission has continued to heat up in my absence. Chairman and Williamson County DA John Bradley was snubbed by his fellow commission members, who insisted on hearing from experts hired by the state before rejecting their conclusions out of hand in a draft prepared by Bradley and commission staff.

Rodger Jones at the Dallas News has a story titled, "Bradley loses, forensic panel will call experts," which sums up today's meeting well. Jeff Carlton at AP writes that "The commission is balking at approving a report that says investigators weren't at fault in determining that arson was responsible for a 1991 house fire that killed three girls in Corsicana." Chuck Lindell at the Austin Statesman reported earlier that Bradley was the only commissioner who edited the draft prepared by staff member Leigh Tomlin (which would have exonerated Corsicana arson investigators) before the full commission today chose to seek more input. The Houston Chronicle rightly today editorialized that the FSC's credibility is at stake if they appear to ignore expert testimony in the case.

MORE: From Kuff: Fire Marshal clings to Willingham arson report. See also Gamso for the Defense and the Waco Criminal Law Blog.

Progress and Its Discontents- Or, What I Learned From An Article in Texas Monthly

Hey, everybody. Jeff Blackburn here. I hope a good week was had by all.

I sincerely appreciated all of the comments to my last post. I avoided answering them individually because it seemed better to let folks argue it out with each other. As far as I can tell, that approach stimulated discussion-which is pretty much the point, right? Many thanks.

Here’s what I want to stimulate discussion about this week: why has it been so hard for us to make things better in the Texas criminal justice system? Why is there always such strong resistance to change?

I received a fresh perspective on these questions when I read an advance copy of an article that will appear in the upcoming issue of Texas Monthly. It will be available online Wednesday and at newsstands Thursday. It is a big, thoroughly-researched and extremely well-written piece by Pam Colloff about the tragic case of Anthony Graves, an innocent man who has been trapped in the Texas system for most of his adult life. For reasons I will explain, this article yields insight into more than his case- it shows why things go wrong in criminal cases generally and why officials often refuse to set them right. Even though it is only about one case, Ms. Colloff partially answers the bigger question of why we can’t make more progress on the statewide policy level. Here’s what I mean:

Big Problems, Actual Solutions

As many of you know, I handle wrongful conviction cases. I’ve done a lot of them both as a private attorney and as a volunteer with the Innocence Project of Texas (IPOT). Every phony conviction I have ever seen is the result of some kind of misconduct or overreaching by officials (police, prosecutors, or judges), bad defense work, or a combination of these things. The same problems repeat themselves in case after case, and what they usually come down to is that one side is rigging the system to win. When justice becomes a competitive sport and one side gets to write the rules that sort of thing tends to happen.

People argue endlessly here and elsewhere about whether it was meant to be this way, whether police are bad or good, whether prosecutors and judges just don’t care, whether district attorneys really do bad things, and so forth. In the long run these arguments don’t matter. Here’s why:

When a system is sending innocent people into prison on a regular basis as ours has done, it has serious flaws. It doesn’t make any difference whether those flaws are there because people are bad, good or just indifferent. What matters is whether the problems can be fixed. They can be in criminal justice. Want to stop prosecutorial misconduct? Pass a statute that punishes it. Allow plaintiffs in civil rights cases the right to sue over it by lifting immunity in such cases. Want to stop bad defense lawyering? Set up a statewide public defender system. Create professional guidelines setting out minimum standards. Want to get the innocent out of prison? Reform the writ system. Want to stop the use of phony eyewitness testimony? Pass a law that keeps it out of court. The list goes on. The amazing thing is that virtually every serious problem we have in this system has a rational solution. We’re not dealing with something like climate change or the end of cheap energy. We’re dealing with problems that can really be solved.

So why don’t we just go and do that? The answer is simple, really, and it came to me after reading Ms. Colloff's article and remembering the facts of the Anthony Graves case: we don’t want to. Why don’t we want to? Because it would make us, or at least the people we elected and appointed, look bad. We are willing to go to ridiculous lengths to save the face of people in this system- and nowhere have we gone to more ridiculous lengths than in the case of Anthony Graves.

The Texas Monthly Article and What It Tells Us About Our State

Ms. Colloff has written a truly excellent article that will tell you just about everything you need to know about Anthony Graves and his case. Readers of Grits should take a look at this piece. It’s well worth the price of the magazine.

I’m not going to discuss the facts of Anthony’s case much here- I want you to read the whole article. I will say that I was privileged to be part of a team of IPOT lawyers that represented Mr. Graves pro bono and that Ms. Colloff’s report is even-handed and accurate.

Anthony Graves was a nice guy who grew up in Brenham. He was well-liked and responsible. In 1992, an entire family was stabbed and bludgeoned to death in Somerville, a small town not far from Brenham. The trailer they lived in was torched. A man named Robert Carter was apprehended a few days later. The evidence against Carter was strong: he had a motive to kill the victims since they were costing him child-support money, he had gasoline burns all over himself, and he had been busy destroying evidence in the days after the murder. The problem was that by the time he got arrested the police and prosecutors had already decided that there had to be others involved in the crime. This “theory”, which was at best a hunch and had been arrived at without any forensic investigation, became their case. Like many prosecutors, police, and presidents in our history they decided to fix the facts to fit their theory- the same sort of behavior that we see over and over again in wrongful conviction cases. This meant that they had to get Carter to say that others were involved- if he didn’t, they would have had to admit their “theory” was untrue and lose face with the locals. After hours of questioning, Carter finally gave them the name of Anthony Graves.

Texas Rangers arrested Mr. Graves shortly thereafter and put him in jail for capital murder, where he has been ever since. The case against him was based on the word of Carter and virtually nothing else- read Ms. Colloff’s article and you will see what this "case" looked like.

That was fine for the State of Texas- it has certainly killed people with less evidence than that. The problem was that Carter began recanting his story and told prosecutors that he would tell the jury in Mr. Graves’s trial that Mr. Graves was innocent. That was the sort of thing that might ruin a perfectly good execution, so the state responded by sweating Carter the night before trial and threatening to make him testify against his wife. After several hours of this kind of "trial preparation", Carter agreed to tell the State’s version of what happened. He did so the next day. Prosecutors covered up what had happened with the recantations and threats- evidence vital to the defense- and got their conviction and death penalty. Mr. Graves went off to death row.

In the months that followed, Carter told anyone who would listen- which was just about nobody-that he had lied about Mr. Graves to tell the prosecutors what they wanted to hear. Carter was eventually executed. Minutes before he died, he told the world again that Mr. Graves was innocent. His last words: “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court.”

Years later, as a result of the truly heroic unpaid efforts of a lawyer and St. Thomas professor named Nicole Casarez (disclaimer here: Nicole is a very close friend of mine and a co-founder of IPOT) and despite the aggressive efforts of prosecutors, all of this came out. Mr. Graves narrowly avoided being executed because the federal courts intervened.

Ms. Colloff’s article describes the extraordinary ins-and-outs of a legal process that involved many fine lawyers working for years on the case. These lawyers- Pat McCann, Roy Greenwood, Jay Burnett, Ms. Casarez and others- barely saved their client’s life. They were ablocked and challenged by prosecutors at every stage of the proceedings.

Ms. Colloff also describes how little any of the legal wrangling has meant to Mr. Graves in practical terms. Eighteen years later, he is still in jail despite his new trial. New pro bono lawyers, of which I was one, have defended him. Mr. Graves now has the stellar legal team of Katherine Scardino and Jimmy Phillips, Jr. on his side. (Disclaimer again: these are both good friends of mine and Ms. Scardino is a member of the Board of Directors of IPOT.)

Ms. Colloff tells this story very well and in a way that makes sense to the average reader. She does more than that, however: she puts it into perspective. Why did Mr. Graves get charged in the first place? Why did the State cover up the truth about Carter’s recantations? Why did the State fight so hard to execute Mr. Graves despite all of the problems it had created? Why does it still insist on trying this plainly innocent man for capital murder?

The answer, ultimately, is because it could- and because it would make some police and prosecutors look bad for doing the wrong thing in the first place if they had to admit to it. Ms. Colloff's objective reporting of the attitudes of law enforcement officials in this case, even to this day, shows this quite clearly.

Mr. Graves’s story is about much more than him: it’s about how the system really works, the human cost it involves, and the ultimately childish motivations that sometimes guide decision-making in this state. As told by Ms. Colloff, it is a story that sheds light on why we have the problems we have in this state. In the last analysis, it is a story that helps answer the two questions we started off this discussion with.

Multiply the cover-yourself-at-all-costs mentality on display in the Anthony Graves case a few hundred times and you get at least part of the answer to the question of why the legislators, judges and prosecutors that run this system can’t seem to fix it: it would make them look bad.

Someday they might get convinced that it is better to be honest than to look good. Until then, the rest of us are going to have to be honest for them. Ms. Colloff’s article is a good example of the power that comes from telling the truth.

Key Report, Articles, and New Coalition Update

Hi everyone, it’s Ana, hope you’re all having a great day.

I received a notice today that an important report has been posted on TDCJ’s website. During Texas’ 2009 state legislative session, lawmakers passed H.B. 1711, relating to requiring the Texas Department of Criminal Justice to establish a comprehensive reentry and reintegration plan for offenders released or discharged from a correctional facility.

The report features the progress of the bill’s implementation. If you are interested in re-entry issues, please check it out!

* * *

Also, below are two interesting articles that Grits readers may be interested in:

• Texas sex offender registry in danger?

• Lawmakers Urge a Change in How Inmates are Counted

* * *

Finally, the website of a newly formed coalition called Texas Forward: A Balanced Approached to a Balanced Budget is up and running. This coalition, of which TCJC is a member, was created to address Texas’ pending budget shortfall, which will have serious ramifications on funding for public services and on the ultimate well being of the people who live in our state.

As we head into the next legislative session, we are concerned about how our leadership will address this critical shortfall. We have already heard much talk about cuts, which means funding for vital services in our state, will be in jeopardy.

In response to the short- and long-term deficits, Texas Forward has coalesced around the following Principles:

1. A truly balanced budget adequately funds today's needed public services and prepares Texas for future demands caused by changing demographics, technology,
and economic competition.

2. A truly balanced budget is supported by taxes that are imposed equitably on families of different income levels and businesses in different sectors.

3. Revenue to fund a truly balanced budget is generated from sources that will grow along with the growth in need for public services.

4. Shuffling money among under-funded programs and shifting the cost of public services off the state budget conceals the true need for more state resources.

5. A truly balanced budget is developed in an open and transparent process.

A growing list of organizations have become Texas Forward members because they know that the budget cannot be balanced on cuts alone. You can visit Texas Forward today to learn more about the 2011 Legislative Agenda and the activities leading up to January 2011.

You can also follow Texas Forward on Facebook and Twitter!

I encourage you to get involved to help us ensure a better future for Texas.

Busy Day For Criminal Justice

Good Morning Everyone,

It’s Ana Yáñez-Correa again, and as I gear up for a busy morning in this rainy weather, I just wanted to keep readers apprised of a couple of important hearings today:

The Texas Judicial Council the Office of Court Administration (OCA) will present its Legislative Appropriations Request for fiscal years 2012 and 2013 to the Budget, Planning and Policy Division of the Governor's Office and to the Legislative Budget Board. The Hearing will take place from 11:00 am - 12:00 pm in the Capitol Extension, Room E2.028. I’ll be there presenting testimony focused mainly on funding related to indigent defense. This LAR will reduce the baseline budget for OCA by 5%, critically impacting the efficacy of key programs and, among other things, requiring the agency to reduce grant funding to counties for indigent defense. Although TCJC is concerned about the negative implications that budget cuts will have on OCA’s ability to fully realize its mission, our testimony focuses on the portions of the LAR pertaining to indigent defense, as the right to counsel is mandated by both the state and national constitutions. To view OCI's LAR, please click here.

UPDATE: This meeting has been canceled for today.

Below are our recommendations from the testimony. To view our testimony in full, please click here.

Recommendations

Our policy-makers must ensure that, despite our current budget shortfall, the momentum gained by the tremendous work of the Task Force and our counties is protected and strengthened. This is even more imperative as the state continues its efforts to ensure safer communities.

Ø Fully Restore the 5% Budget Cut

TCJC strongly urges the full restoration of the 5% budget cut ($1.5 million) to support the Task Force. The 5% reduction would cut allocations to already-underfunded programs, in turn severely burdening Texas counties. Indeed, since 2001, the Task Force has helped develop award-winning and innovative programs, which have provided thousands more people with appointed counsel. Restoring funding would promote the continued development, maintenance, and expansion of good programs that help fulfill a constitutional duty, minimize the burden borne by the counties, and increase confidence in Texas’ justice system.

Ø Provide Additional Help to Counties

In light of the many improvements to indigent defense since the passage of FDA, policy-makers must seriously consider any requests for additional funding proposed by the Task Force, even if incremental, to assist counties in maintaining well-run public defender offices and other successful indigent defense programs. Again, Texas does not provide financial assistance to counties from its General Review: that funding is solely derived from fees. It is the state’s responsibility to Texans to ensure that their right to counsel is protected at all cost, regardless of their income.

Ø Solutions to the Budget Cuts

Instead of harmful budgetary cuts to critical programs, the Legislature must take advantage of the Rainy Day Fund, which could provide over $9 billion for the 2012-2013 state budget. Additionally, policy-makers must maximize the use of available federal funding, including any additional stimulus aid or new matching funds made available by health care reform. Finally, the Legislature must create new sources of revenue that are equitable and can grow with the need for public services, including cost savings through the elimination of unproductive tax breaks.

The Senate Criminal Justice Committee, chaired by Senator John Whitmire, is also holding a hearing this morning at 10:00 AM in room E1.016 of the State Capitol. The Committee will meet to hear invited and public testimony on the following interim charges, both of which should be of interest to Grits readers:

Interim Charge 4: Study and make recommendations related to municipal jails and other detention facilities that operate without state agency oversight. Identify the number of such facilities and the population detained, as well as best practices for municipal jails. Make recommendations to improve services and consider options for oversight of facilities by the Texas Commission on Jail Standards.

Interim Charge 6: Study and make recommendations to ensure the accuracy and timeliness of testing done in Texas forensic laboratories, including DNA and blood/alcohol testing. Assess and make recommendations for improving the capacity of Texas criminal laboratories to process evidence, identify ways to reduce the backlog of DNA evidence processing, identify ways to encourage qualified applicants for crime lab jobs, ensure adequate training for new crime lab technicians, ensure the availability of efficient crime lab processing to all regions of the state, and determine the impact of additional collection requirements on the capacity of Texas crime labs to process evidence. Consider the costs and benefits of creating a statewide crime lab.

If you aren’t able to make it to the hearing, you can listen to the hearing live here.

I hope you all had a restful holiday weekend and are ready for a busy day in criminal justice!

The Coming Crisis in Indigent Defense

Jeff Blackburn here. Thanks for the comments, both on- and off-the wall, to my guest entry last week. I appreciated them all very much. I’m sorry for not getting back here sooner- I got way too busy last week. Besides, I figure lengthy absences from guest bloggers will help us all get what we know we want: the timely return of Mr. H. and his daily ministrations.

In this post I want to discuss the issue of indigent defense in Texas and take a look at where it is probably headed in the next period.

Hard Times Ahead for Counties

Some of you may have missed an audio piece by Ben Philpott that appeared in the Texas Tribune last week. Mr. Philpott interviewed some county officials to get their view of what lies ahead in the wake of the $18,000,000,000.00 (that’s eighteen billion dollars, folks) worth of cutbacks the legislature will have to make this session. You can find these interviews here.

The potentates he talked to all agreed that counties are in big trouble. Pointing to the consequences of the last time the State cut spending in 2003, the judges, commissioners, and others that were interviewed discussed the huge amount of expense that was dumped on counties after that session. These “unfunded mandates” included costs of road maintenance, indigent health care, and disease testing. They predicted more of the same this time and fretted over how they would be able to raise the money.

The Indigent Defense Elephant in the Room

One cost these officials failed to mention was indigent defense. This was curious, since we all know that the quality of justice is largely determined by the way we treat poor people accused of crime and that county judges and commissioners are much more concerned with justice than road repair or property taxes. Ok, maybe not- but they at least ought to be bringing up the subject. The cost of representing poor people already takes a substantial chunk of every county’s revenue, and that amount is likely to grow in the future.

This failure to deal with the reality of indigent defense costs is not exactly new. Ever since the passage of the Fair Defense Act and the creation of the Task Force on Indigent Defense, there has been real improvement. We now have more public defender systems, more indigent defense coordinators, and more money being spent on grants to counties. The move toward a public defender system in Harris County is a huge step forward. As Tony Fabelo, the current director of research at the Council of State Governments and an all-around brilliant guy, said at a Senate hearing in May, “In the last 10 years, we have made such huge progress in this area that we are no longer the laughingstock of the nation." Passing on the question of whether "not being a laughingstock" really constitutes “huge progress” (although I guess starting at near-zero and making our way to zero-point-something is a pretty big step, after all), everyone can agree that there has been substantial improvement. To the casual or starry-eyed observer, it would appear that things are just getting going to get better and better.

Of course, we’re not casual observers here and we certainly lack stars in our eyes. Except for a few anonymous posters every now and again, I’m pretty sure that we prefer critical analysis, forward thinking, and rational discussion. Since all that stuff tends to give the average voter a headache it is little wonder that the future of indigent defense in this state is not receiving much attention from the folks who are charged with funding most of it. That means it is up to the rest of us to deal with it. What follows are some basic points to consider for that discussion.

The lack of present attention by officials at all levels of government is going to make things harder to deal with in the future. We are heading into a disaster in indigent defense- a disaster that will get underway in the wake of the upcoming legislative session and keep unfolding over the next few years. Forget about progress, gradual or otherwise: we are on the cusp of a crisis that will likely wipe out the advances of recent years and take us to a whole new level of injustice in Texas.

How Bad Is It Now?

We currently spend $190 million dollars per year on the defense of poor people accused of crime. That level of spending puts us close to the national bottom: at $7.04 a head, we spend less on indigent defense than 44 other states, giving us a slight edge over places like Mississippi and Arkansas. Of this wholly inadequate sum, the state pays only about $28 million. County governments pay for the rest out of local property taxes.

The result of this piecemeal approach is that Texas is “not close to meeting the bar in terms of funding to have a constitutional system”, according to Jim Allison, the general counsel of the Texas Association of Counties. (See here for the full article.) That’s right: the guy who represents county judges and commissioners thinks that the current system is a failure. I respect Mr. Allison- he always calls it like it is. No one could successfully accuse him of being a wild-eyed, biased believer in the rights of the accused. When he says that a county-based system is broke it is.

This Legislature and Beyond

You can bet that this session of the legislature will not be increasing funding for indigent defense while taking an eighteen billion dollar haircut. State Senator Rodney Ellis has already said so. That means that counties are going to have to keep paying the tab just to maintain the lousy system we already have. The question is whether they will be able to do that, much less improve things.

We are entering a time of shrinking county tax rolls and decreasing collections. What we are seeing on a statewide basis will be replicated from county to county. The effective collapse of real estate prices, the payment of interest on debts incurred in happier times to build jails and courthouses, and the deflation of asset values mean that county money is going to get harder to come by. The idea that most county governments will raise taxes to pay for anything, especially better representation of poor defendants, is close to ridiculous: you might as well ask them to build a mosque next to the courthouse.

Some reformers think that county cutbacks will be a good thing. They see them as a chance to create more public defender systems throughout the state.

Their logic goes like this: the best way to improve indigent defense is through the creation of “do-able” small county and regional public defender (pd) offices. Small or not, these organizations can do much better work overall than appointed lawyers. They also don’t cost as much, or at least their expense tends to break even with the amounts of money currently being spent. According to this thinking, the desire of county governments to reduce expenditures will lead them inexorably to the creation of local pd offices, and thus Texas counties will will wind up doing the right thing whether they wanted to or not.

I strongly agree that we need public defenders, although I think local offices are at best a stopgap solution. I also agree that counties are going to need to dramatically cut costs in the coming months and years. I just don’t believe that many of them will set up pd offices to do it.

How Bad Can It Get?

There are currently no performance standards or enforcement mechanisms to regulate how much a county pays for indigent defense. Funded, unfunded, or otherwise, the only “mandate” given to counties is the general one found in the federal and state constitutions. About the only thing the state government can do to a county that is persistently paying too little and violating the rights of poor defendants is to withhold grant money. Given the chump-change size of most of those grants that's not much of a threat. Losing one wouldn't make much difference to a county hell-bent on saving money. Nothing would stop such a county from blowing off a state grant and going on it's own.

A county government that did that could set up all kinds of horrible yet money-saving alternatives for itself. It could set up a contract system, where some lowest-bid lawyer agrees to handle all the cases for a fraction of what a real attorney would be paid. County attorneys and judges could hustle more people accused of misdemeanors into pleading guilty pro se. Counties could also just lower the amounts paid to appointed lawyers: how about $100.00 per felony? Given the number of under- and un-employed lawyers floating around the state due to tort reform there would be plenty of takers at that price.

Variants of those practices are in place all over Texas now. I haven't seen felony cases go for a hundered bucks a throw yet, but I have seen them go for $250. Either way, that kind of money is far too little to assure anything but the worst representation by the worst lawyer. The misdemeanor hustle, where prosecutors "plea bargain" with unrepresented defendants who aren't told about all of the real consequences of pleading guilty, is in full swing in counties throughout the state. Contract "systems", too, are already out there: one of my favorites, in Dawson County, is getting the job done for the whopping sum of $237.50 per case. Since that includes the cost of experts and investigators, we can all feel assured that every poor person charged with crime in that county is getting top-drawer representation and a throughly prepared defense.

As long as we have a piecemeal indigent defense system in Texas we will have only piecemeal reforms. Some counties like Harris will step up and do the right thing. Others, like Dallas, will actually raise taxes to at least maintain what they have. But for every county like that, there are ten others who will view raising taxes as a violation of their religion and cut costs across the board. In counties like that- in most of Texas, in other words-indigent defense costs will be among the first to go. If you think the quality of justice in Texas is low and uneven now, wait another three years and see how many counties have effectively given up due to lack of money.

The Solution: A State-Wide, State-Funded Public Defender System

Like most criminal justice problems in Texas, this one has a solution. If we had a decently funded statewide public defender system all kinds of things would happen: the quality and level of representation would go up, chronically underachieving lawyers would get swept out of the system, and Texas might even stop having to measure its progress by whether we have moved past the “laughingstock” level. Prosecutors and police might have to work a little harder and stop breaking the law as much. Who knows? We might even stop convicting so many innocent people.

Nineteen states currently have systems like that. Although there are plenty of problems with such outfits, they are doing a far better job than we are. These states have already created models for us to go by.

Will it ever happen here? Yeah, sure...right after we get those courthouse mosques built. In the meantime, we will have to settle in for a long period of local budget implosions, sorry representation of the poor, and the certain knowledge that we could have avoided it all in the first place if we had done the right thing and set up a real system when we had the chance.

Why so few DWIs in Berlin? Public transport

I'm writing from Berlin, which I'm finding to be just a fabulous city, but while I'm waiting on the missus this morning I thought I'd share with Grits readers a conversation I had yesterday with a German cop about DWIs.

There's a LOT of drinking in Berlin, where locals and tourists alike definitely enjoy their beer, generally a half-liter at a time. But according to the officer I spoke to, there isn't a great problem with drinking and driving here. "The drunks, they just ride the U," which is the city's underground subway system, she told me with a grin, adding that drunk driving had diminished with the recent implementation of "much more serious punishment." "What is the punishment for drunk driving here?," I asked. "A very large fine," the officer replied, "but if you are arrested [for DWI] more than once the fine becomes very high."

So this morning I checked online for more detail and found this story about the recent fine increases, which informs us that:

Drunk driving cases have dropped significantly in Germany following a government decision to double fines for getting behind the wheel while intoxicated, a media report said on Monday.
The former “grand coalition” government implemented the law on February 1, 2009, changing the fine for first-time drunk drivers from €250 to €500, and from €750 to €1,500 for third-time offenders.

Though the increases were widely criticised at the time, they have been effective, according to a nationwide survey by the Financial Times Deutschland.

The greatest improvement has been logged by authorities in Germany’s most populous state of North Rhine-Westphalia, where the number of drivers caught drunk behind the wheel dropped by 14 percent to 8,951 in 2009, the paper said.

In both Brandenburg and Bavaria cases dropped by 13 percent, while Mecklenburg-Western Pomerania and Rhineland-Palatinate saw reductions of eight and six percent respectively.

Berlin saw just a three percent drop, but with just 2,808 drunk drivers caught in 2008, the number remains relatively low, the paper said.

Notice that's not 2,808 DWI deaths in Berlin in 2008, but 2,808 ARRESTS for the offense en toto!

The lower rate of DWIs is not, however, because of harsher punishment. A 500 Euro fine is about $640 American, but their DWI rates were much lower than ours even when the fine was half that. By contrast, in Texas DWIs include steeper fines, surcharges and potential jail time. For third-time DWIs, in Germany the recently increased "harsher" fine comes to just under $2,000 American - in Texas a 3rd DWI makes one eligible for a straight up two-year prison sentence.

Why are there fewer DWIs here despite plenty of drinking? As far as I can tell, the Berliner cop nailed it: Excellent public transport, probably coupled with the fact that there are pubs and bars in every neighborhood instead of zoning them all in one or two sectors of town. I'd mentioned last month on Grits that England, too, has surprisingly low DWI death rates for a country nearly three times the size of Texas, and I can't help but think that public transport in the major cities is the big reason.

More arrests and harsher laws aren't always the best solution to social problems like alcoholism and public transportation. Clearly whatever the Germans are doing on the subject is working a lot better than Texas' approach.

And please don't tell me public transport can't be extended to already urbanized areas. When the Wall fell in 1989, the two sides of Berlin reunited and the west side's subway system, the "U," was extended into the already inhabited East German parts of the city. If they can do that, Texas cities could figure out how to accomplish the task. (In Austin, the City Council plans to build an 8-mile long, 30-40 foot wide tunnel from Lake Travis into town to connect a water treatment plant the city doesn't even need. I've said to Kathy numerous times it's infuriating to me they would build a tunnel like that and we aren't getting a subway out of it.)

Criminal enforcement inevitably must be part of the answer for confronting DWI, but it's obvious to me that folks who're addressing the problem more successfully than we are rely on that approach much less exclusively. This trip is confirming my sense thatTexas has long ago passed the point where, for DWI, public safety returns on harsher punishment  have diminished and other approaches would get a lot more bang for the buck.