Kerry Max Cook: 'Rogue' DAs don't deserve 'Prosecutor of the Year' honors

Kerry Max Cook, who is seeking post-conviction DNA testing to formally, finally exonerate him of a 1978 murder for which he was sent to death row three separate times, asked Grits to post this brief essay:

“ …It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.  They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (Texas Code of Criminal Procedure, Article 2.01)

There is definitely something broken - - and broken badly - - when the Texas County and District Attorney Association section of the State Bar of Texas awards and sanctions rogue prosecutors by unabashedly nominating them "Prosecutors of the Year."

My name is Kerry Max Cook. I am the author of a memoir called CHASING JUSTICE:  My story of freeing myself after two decades on death row for a crime I didn’t commit. [Ed note: See a review.]

What do Williamson County’s Ken Anderson and Smith County’s Jack Skeen share in common? Both were awarded "Prosecutor of the Year" by the County and District Attorneys section of the Texas State Bar.  And both were later appointed to District Judgeships by Gov. Rick Perry.

When a Tyler Judge in Smith County moved my case to Williamson County in 1992 for the first of what would become a series of retrials in the ‘90’s, then-District Attorney Jack Skeen sent me back to death row a second time. In fact, of all the things you can say Jack Skeen and Ken Anderson have in common, the one thing they don't is that Jack Skeen is not facing a Court of Inquiry and Ken Anderson is.

If anyone really sat down and took the time to wade through all the documented Jack Skeen and David Dobbs misconduct in my case, I think you would be shocked at how bad it really was. It would make the machinations of John Bradley look like Cinderella.  But that won't happen. You see, in Texas we have what I like to call Sak's Fifth Avenue justice for the Ken Andersons and Jack Skeens, and Wal-Mart justice for the Michael Mortons and Kerry Cooks.

Take my case for example. Here you have one of our largest newspapers in Texas, the Dallas Morning News, from 1980 until 1992 writing an award-winning series of investigative stories on my persecution that began with "Inmate was Railroaded, Testimony in Cook case called mostly false," "Convicted Man Called Innocent," "Key Evidence in Cook Case Suppressed," "Wrong Man on Death row," "Psychologist Views on Inmate Disputed," "Conclusions Wrong, Experts Say," "Police Didn't Pursue Leads in '77 Killing: Tyler Inquiry called Sloppy," and many more. These headlines were published across the state of Texas.

The man responsible  who caused those torrid headlines to be written was 1977-78 Smith County district attorney A.D. Clark, III.

Fourteen years later, Jack Skeen (A.D. Clark, III’s first-cousin) used the exact same "fraudulent” case A.D. Clark, III first built to convict me and then pushed it until he got a second conviction and death sentence at a third trial in 1994 with a Williamson County jury.

These Dallas Morning News investigative headlines had already splashed across Texas long before Jack Skeen received his “Prosecutor of the Year” award in 1997. In addition, by this time, Jack Skeen had already sent me back to death row once more and was on his way to do it again in a fourth trial after the conviction he obtained in my third trial with the use of the very same "fraudulent evidence” (See Tex. Ct. Crim. Apps. Nov. 6^th. 1996 Opinion). The County and District Attorney's Association knew all of this when they nominated Jack Skeen “Prosecutor of the Year” in 1997.

Maybe  one day the spirit of the words found in Article 2.01 of the Texas Code of Criminal Procedure can have meaning in Texas. Today, they don't. After what I have gone through in Smith County, I'm not sure they ever did.

RELATED: See Cook's motion to recuse and disqualify (pdf) Judge Jack Skeen in future proceedings in his case. Here's a good summary from Texas Monthly's Michael Hall on Cook's efforts to seek exoneration, and recent commentary from former Dallas News reporter David Hanners, mentioned above, who believes Cook is actually innocent.. Finally, here's an oldie but a goodie, this Houston Chronicle story from 2000 alleging prosecutorial misconduct in Smith County, using Cook's case as a prime example. (Then Smith County DA Jack Skeen sued the paper for libel over the story and lost.) Also, in addition to Judges Anderson and Skeen, it's worth mentioning that Williamson County DA John Bradley is also a past "Prosecutor of the Year" recipient.

Illegal everything, no-knock warrants, and the right to BearKats

Here are a few disparate items that deserve Grits readers attention.

Suing property owners to reduce crime
Rather than prosecute individual crimes in criminal court, the Harris County Attorney is suing property owners seeking an injunction to end illegal behavior.

'The Right to BearKats'
I've seen reports of quite a few Texas departments purchasing these vehicles and ones like it.

Grand jury no-bill in police shooting becomes issue in Austin DA's race
A racially charged police shooting in Austin remains a flashpoint after separate grand juries refused to indict either the surviving civilian who was accused of driving his car at a officer or that officer's partner who shot the passenger in response. The grand jury's no-bill of the officer has become an issue in the DA's race, with Charlie Baird saying he would take the case back to the grand jury if elected. Grits has not followed the details of this case closely, but I can speak generally from past experience to say, while I like Travis County DA Rosemary Lehmberg well enough on many issues, she's never been aggressive when it comes to prosecuting police officers who are unduly violent or abuse their position, dating back to her position as Ronnie Earle's first assistant. Even when misconduct is obvious, serious charges tend to get pled down to misdemeanors. She may be vulnerable on that score.

'No-knock' warrants may mean civil liability for SAPD
The Texas Civil Rights Project won a victory at the 5th Circuit Court of Appeals, which "found that the officers' failure to knock and announce their presence before entering the women's home might have violated their Fourth Amendment rights to be free from illegal search and seizure." Reported the SA Express-News, "The court sent the case back to San Antonio for a jury trial later this year that also could determine whether the city is on the hook because the cops were following its policy of “'no-knock' entries during raids."

'The War on Drugs Has Failed: Is Legalization the Answer?'
See a report from one of the presenters at an event in Houston held by the Baker Institute (as in former Republican Sec. of State James Baker) titled, "The War on Drugs Has Failed: Is Legalization the Answer?"

Consultant: Privatize Cameron jail
Consultant MGT recommended that Cameron County privatize its jail, but it's unclear if privatization would reduce costs or only reduce accountability. Savings would supposedly come from "pension liability, health insurance, liability insurance, workers’ compensation insurance, insurance rates in general, overtime, inmate health care, food service and commissary costs."

'A strange business to be in'
Business Insider posts excerpts from a Corrections Corporation of America presentation to investors and declares it's "one of the creepiest presentations we've ever seen," though they're "not judging," merely concluding that "it's a strange business to be in: Caging humans for profit."

'Illegal Everything'
I'm not a tremendous fan of John Stossel, but this segment titled "Illegal Everything" includes rare commentary on seafood-related felonies, which long-time readers should appreciate, as well as the criminalization of children's lemonade stands.

'Death row inmate's case about more than innocence'

Brandi Grissom has a story at the Texas Tribune with the same title as this post about the habeas claims of death-row inmate Rob Will, who was condemned for a 2000 murder of a Houston Deputy Sheriff. Writes Grissom:

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, U.S. District Court Judge Keith Ellison lamented that even though he was concerned Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Will’s best chance for a new trial may lie with an Arizona case that the U.S. Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

The federal case mentioned is Martinez v. Ryan, which has been heard at oral argument (see the transcript [pdf]) but not yet decided. See SCOTUSBlog's page on the case, where the "plain English" description of the case reads: "Ordinarily, criminal defendants have a constitutional right to have a lawyer appointed to represent them at their trial and during their direct appeal, but not during any subsequent post-conviction proceedings. When a state system only allows prisoners to argue that their lawyers were inadequate during post-conviction proceedings, does the defendant have a right to appointed counsel during that proceeding?"

Texas Attorney General Greg Abbott signed on to an amicus brief (pdf) opposing the right to counsel in such cases, while the Innocence Network, of which my employers at the Innocence Project of Texas are a member, issued an amicus brief (pdf) on the other side.

Setting aside the legal merits of the case, IMO there's a strong policy argument for providing counsel for more post-conviction writ claims. Quite honestly, habeas litigation is such a mess, with so many badly crafted pro se filings clogging the docket, it might relieve the courts and make the system a lot cleaner if counsel were appointed to do one serious habeas claim instead of a bunch of petty ones that the prisoner either writes up on their own or barters for some untrained writ writer to prepare. The Court of Criminal Appeals get thousands of habeas claims each year, and state laws limiting so-called "subsequent writs" (intended to reduce post-conviction litigation) mean that, if pro se litigants don't get it right the first time, often they don't get another chance later if and when an attorney tries to take a more serious shot.

In Will's case, it seems like he really did have ineffective counsel. Wrote Grissom: "In Will’s first appeal, his state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Will’s case. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers."

Providing indigent counsel for habeas writs - particularly those alleging ineffective counsel in their original proceedings, but really in most cases - would make the habeas process more of a truth seeking endeavor. In the current process, as in Will's case, too often procedure trumps substance, focusing on the bureaucratic exercise of seeking out errors by non-lawyers as an excuse to dismiss writs as rapidly as possible, if only in order to make a dent in the ever-expanding pile.

Like the pardon power, 21st century habeas corpus has been largely denuded of its ability to fulfill the function the Founding Fathers envisioned for it in the 18th. When a federal judge can write in a capital case, truthfully, that “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction,” then we've reached the point where mass incarceration - indeed in Will's case even capital punishment - rests primarily on procedural justifications, no longer moral ones.

Reaping what you sow at the body farm

I don't know what if anything it says about us, but there are five "body farms" in the United States where scientists perform real-world studies on how corpses decay, and two of them are in Texas, at Sam Houston State and Texas State Universities. AP has a story about the body farm in San Marcos (TSU), which has been studying the relation between vultures and decomposition, including findings that could have implications in possible innocence cases.

“If you say someone did it and you say it was at least a year, could it have been two weeks instead?” said Michelle Hamilton, an assistant professor at the school’s forensic anthropology research facility. “It has larger implications than what we thought initially.”

The vulture study, conducted on 26 acres near the Texas campus, stemmed from previous studies that used dead pigs, which decompose much like humans. Scientists set up a motion-sensing camera that captured the vultures jumping up and down on the woman’s body, breaking some of her ribs, which investigators could also misinterpret as trauma suffered during a beating.

Grits first heard about Texas' body farms last year from an SHSU prof who was excited by the work, and indeed, in its macabre fashion, this is important, cutting edge stuff, applying the scientific method to subjects about which medical examiners have given expert opinions for years with little hard data to support definitive conclusions. Fascinating stuff.

Keller tries to derail Keith Hampton's candidacy; Mark Bennett to challenge Hervey as Libertarian

It's a rare day when the Texas Court of Criminal Appeals makes the news for anything but the occasional overzealous death penalty ruling or suborning some cockamamie brand of junk science, but this week brings two tidbits of electoral political news that merit attention: Republican Sharon Keller levied a challenge with the Democratic Party to the candidacy of her presumed opponent Keith Hampton, aiming to keep his name off the November ballot. And Mark Bennett, the Houston criminal defense attorney who blogs at Defending People, signed up as a Libertarian candidate to run against Judge Barbara Hervey in the fall.

Let's take these two in order of importance: Since her fellow CCA judge Larry Meyers decided at the last minute not to challenge Sharon Keller in the GOP primary (after previously announcing he would do so), eliminating Hampton in the courtroom instead of the ballot box would relieve voters of any option whatsoever for replacing Keller for a fourth term as Presiding Judge. Given that, here's hoping Keith Hampton got his act together on his signatures before the filing deadline and his candidacy is approved. See Hampton's press release responding to Keller's gambit.

As for Mark Bennett (visit his campaign site), Grits must confess disappointment that he signed up to run as Libertarian when there's no Democrat running against Republican Barbara Hervey. Bennett understatedly declared that "the Libertarian candidate in a race for a seat on the Court of Criminal Appeals faces a steep uphill battle." In reality, as a practical matter, the Libertarian candidate has entered into a political suicide pact. Bennett himself demonstrates why in a  post laying out vote results from 2008, the last CCA race coinciding with a presidential election:

Place 3:

Republican Incumbent	3,940,954
Democratic Candidate	3,477,426
Libertarian Candidate	215,427

Place 4:

Republican Incumbent	4,035,683
Democratic Candidate	3,336,944
Libertarian Candidate	249,921

Place 9:

Republican Incumbent	4,709,086
Libertarian Candidate	1,041,499

Your mileage may vary, but these downballot races barely run campaigns and do not typically spend money on paid media. Very few voters can even name a member of the Court of Criminal Appeals, much less meaningfully evaluate their record. And the MSM are lucky to devote one story per election to the race at any given outlet, with political reporters generally understanding as little about the court as the general public. As a result, CCA vote totals derive almost purely from party identification.

Let me step back for a moment to make clear that I respect Mark Bennett tremendously, both as an attorney (by reputation) and as a writer, and that's speaking as someone who may have read every single word he's written, or close to it, virtually since the day he began Defending People. He's a great guy and I think he'd make a terrific judicial candidate. Now let me proceed to chastise him, though merely on grounds of political naivete and perhaps a wee bit of selfishness, not ill intent.

(Grits should add that, despite my various policy differences with Judges Hervey and Keller, neither woman has ever been anything but extraordinarily gracious and polite toward me. Judge Keller seems like an authentically sweet person on a personal level, though admittedly she's never wanted to chit chat much, while I genuinely enjoy Judge Hervey's company. The fact that I'd like to see the voting bloc responsible for decisions like this one and this one broken up on the court doesn't mean I hold any personal animus toward either of them.)

Bennett tells us he chose to run for the Court of Criminal Appeals because the slot against Barbara Hervey was the only one statewide where Libertarians hadn't lined up a candidate. Well, guess what? That means that was the single race where - before Bennett filed as Libertarian - a candidate who seriously wanted to unseat Hervey and begin voting and writing opinions in her stead could have filed as a Democrat and had the best chance in more than a decade of unseating an incumbent statewide Republican.

Libertarian votes are protest votes - the electoral version of "none of the above." If there were no Libertarian candidate, most of those votes would go to the non-incumbent, which in Texas means to the Democrat, or else those folks just wouldn't vote at all. I've always inferred from the large Libertarian vote in CCA races that there's a disproportionate amount of dissatisfaction with the Court of Criminal Appeals among voters under Sharon Keller's leadership, or else why would the Libertarian totals get so high when a Dem is absent? In other races where Rs run unopposed by a D, L totals are typically much lower.

So Bennett's candidacy in Grits' estimation represents not a cause for celebration but a missed opportunity to unseat a member of the court faction who, with Judge Keller, has systematically slanted the court's jurisprudence far to the pro-prosecution end of the spectrum. That said, Judge Hervey - both in several notable opinions and her work with the Criminal Justice Integrity Unit - has distinguished herself as more thoughtful and slightly less hard-line than Sharon Keller, but in the scheme of things the two women's records aren't all that different, particularly compared to where a Mark Bennett might come down on the issues.

Bennett nobly announces that "I don’t want a single vote from anyone who can’t explain to me what my job will be if I’m elected." Translation: He doesn't actually want to be elected. Why would he, since he grants elsewhere that "getting elected would entail a brutal pay cut"? Sure, as Bennett declared on Defending People, this is "an office in which [he] could do real and lasting good." But the harsh truth is if the goal was to get on the court and do good instead of just talk about it, he'd have run as a Democrat or in the GOP primary.

Running quixotic campaigns for office to "educate" the public about this or that subject or to "send a message" is about as ineffective a tactic imaginable, substituting a single candidate's personal ambition for the policy goals of whatever ideals one hopes to champion. The only reason to run for office is to try to win, because power comes with winning and elections are how we decide who gets to wield it. That's all it's about. If you want to "educate" people, write on your blog or even better, use the money you were going to spend on a campaign on paid advertising to promote your message. More people will receive it that way.

Grits has opined for years that the CCA races (and to a lesser extent, the Texas Supreme Court) are the Texas elections where Dems have far and away the best chance of unseating a statewide Republican. Bennett notes that "in the closest 2008 Court of Criminal Appeals Race there was more than a 200,000-voter difference (that is, the result would have been different only if more than 200,000 voters had [switched their votes]) between the winner and second place." That's not an insurmountable margin, particularly compared to other statewide races, if a serious candidate were to run an actual, well-resourced campaign.  If there were no Libertarian candidate and most of those L protest votes went to the D challenger, the race tightens up considerably. In an R v. L matchup, though, the risk of success is a null set. Bennett's lotto numbers have a better chance of coming up.

Keith Hampton, however, has a puncher's chance to defeat Sharon Keller if he can make it onto the ballot, particularly in a year where conservative voters could stay home if Mitt Romney is the GOP presidential nominee. That's where the real action lies, to the extent it's possible for any Dem to win a statewide race in Texas at this historical juncture. Bennett's candidacy will be fun for his readers - and I hope for him - but regrettably inconsequential.

Debating Texas' travel warning on Mexico: DPS should leave travel advisories to the State Department

Despite his self-interested subject position, I have to agree with the writer from the Mexican Tourism Board who criticized the Texas Department of Public Safety for a stern travel warning issued on Tuesday titled, bluntly, "DPS Advises Against Spring Break Travel to Mexico." Countering that sentiment, writes Rodolfo Lopez-Negrete in the Austin Statesman:

Over the course of the next three months, Mexico will play host to a who's who of the world's most influential leaders.

In April, the World Economic Forum on Latin America will take place in Puerto Vallarta. In May, leading tourism industry figures will converge on Cancún for the regional summit of the World Travel and Tourism Council. The culmination of this trifecta will take place in June, when leaders from the world's 20 largest economies will meet in Los Cabos for the annual meeting of the G20.

This hardly sounds like a place to be avoided en masse. Yet, this is precisely what the Texas government has urged its citizens to do in its most recent warning about travel to Mexico, released Tuesday and simply entitled, "DPS Advises Against Spring Break Travel to Mexico."

This warning paints Mexico with a massively broad brush, discounting nuance, logic and facts. Mexico remains Texas' No. 1 trading partner and largest export market — in other words we are "friends" and as such, are disappointed by this travel warning.

In 2011, 22.7 million international tourists visited Mexico (not including those who arrived by cruise line or border crossings), trumping our previous tourism record, set in 2008. Furthermore, Mexico continues to be the No. 1 destination for American travelers. The overwhelming majority of these tourists enjoyed our beautiful beach resorts, gastronomical delights and world-class cultural offerings without the slightest negative incidents.

Lopez-Negrete does "not at all dispute the fact that there are parts of Mexico that are prone to violent incidents and are not currently safe for travel," though he may overstate things when he adds that "The same could be said of Austin, Houston or Dallas, for that matter." There is no place in Texas, or perhaps the world, outside a war zone, as violence prone as Juarez.

That said, when Houston recently posted its lowest murder rate in nearly five decades, Grits reminded celebrants that the record-low still left H-Town's murder rate higher than Mexico City's (9.4 per 100,000 compared to 8.3). The missus and I visited Mexico City last summer with a then-4-year old with no incident whatsoever, as is typical, and had a wonderful time.

Now, should vacationers be visiting Juarez, or for that matter, Acapulco? Probably not, though even in Acapulco the State Department says, "the popular tourist area of Diamante, just south of the city, has been less affected by violence." My own planned vacation in Mexico this summer has shifted from Veracruz to the Yucatan/Quintana Roo because of drug-related violence - perhaps being more careful than necessary, but why risk it?

So I certainly agree Americans should exercise caution visiting parts of Mexico (or Miami, or Chicago, or Houston, or LA), but the DPS travel advisory paints with too broad a brush. By contrast, the US State Department travel advisory offers a detailed, frequently updated state-by-state breakdown of which parts of Mexico to avoid and which are relatively safe. Most of the major spring break sites with the notable exceptions of Acapulco and Baja, appear OK. (MORE: Commenter Paul-UK supplies a link to the United Kingdom's travel advisory on Mexico.)

Mexico is an enormous place, not to mention one of the Texas' pivotal economic partners. DPS should stop this sort of politicized demagoguery - which seems aimed more at sucking away tourist dollars than promoting public safety - and tell anyone who asks about Mexican travel to check with the State Department.

Texas, other states should decline Corrections Corporation of America's offer to buy prisons

According to the Houston Chronicle's Patti Hart and other reports, the letter Corrections Corporation of America (CXW on the stock exchange) sent to 48 states last month offering to buy their old facilities included a perverse and unconscionable set of proposed conditions: CXW would only buy the prisons "if the selling state would guarantee to keep it filled [to] 90 percent capacity for 20 years."

With incarceration declining nationwide, I understand why CXW is seeking long-term stability. It's the same reason states should turn them down. It appears the incarceration bubble is bursting, with immigration detention the only near-term growth sector in private prisons' portfolio. Texas state prisons are full but incarceration rates are declining, with crime falling at an even steeper rate. Last year for the first time ever, Texas closed a prison unit instead of building or leasing more. In the past four years, the state has reduced the juvenile prison population by more than 2/3, including closing several facilities including a private one in Coke County.

At the county level, despite pockets of overcrowding (caused mostly by local elected officials' aberrant decision making), county jails statewide are terribly overbuilt, operating collectively at 68.4% capacity as of February 1, with 93,535 jail beds statewide and only 63,985 inmates to fill them. Imagine what a fix counties would be in if 5 years ago they'd sold their facilities to a private company and guaranteed them 90% capacity!

CXW and (even more so) its chief competitor the GEO Group are already overladen to the gills with debt, so the offer only makes sense if states agree to guarantee them a 90% occupancy rate two decades into the future, and any state pol who fell for that would be buying a pig in a poke. Conversely, if the company were to buy old prisons without such a guarantee, they'd be the suckers. State Senate Criminal Justice Committee Chairman John Whitmire has been quoted in press reports saying he disfavors the idea, and Grits hopes Texas officials as well as leaders in other states universally follow his lead.

Will history judge society by our graffiti?

Dostoevsky said the "degree of civilization in a society can be judged by entering its prisons," but perhaps future historians will judge us instead by our graffiti, or at least the graff that escapes buffing. The headline of a recent article in Science Daily proclaimed: "Ancient 'graffiti' unlocks the life of the common man," referring to 2,000 year-old graffiti in Israel as a sociological treasure trove equivalent to the "tweets of antiquity."

It must infuriate anti-graff zealots like the good folks in Corpus Christi to imagine that history might someday judge them by the scrawls they buff, cover and prosecute with Sisyphian doggedness.

TPPF: 'Public Safety and Cost Control Solutions for Texas County Jails'

The title of the latest policy brief (pdf) from the Texas Public Policy Foundation, a conservative Austin-based think tank, is "Public Safety and Cost Control Solutions for Texas County Jails." Their recommendations touch on many themes that will be familiar to Grits readers, including:

• Reexamine Bond Schedules
• Ensure The Judiciary Has All Relevant Information When Setting Bond Amounts
• Increase Court Efficiency
• Inform Jail Inmates of All Release Options
• Strengthen Jail Reentry Practices
• Consider Utilizing Improved Electronic Monitoring Technologies
• Implement the Cite and Release Option in Appropriate Cases

TX Court of Criminal Appeals okays 'trial by polygraph'

The Texas Court of Criminal Appeals continues to struggle with how to handle junk science, issuing (at least) its second 5-4 opinion in the last year (Ex Parte Robbins is the other I have in mind) allowing courts to rely on known junk science, this time reversing the lower court to proactively affirm the use of polygraphs as a basis for revoking sex offenders' probation. Chuck Lindell at the Austin Statesman gives the only MSM account I've see of the case of William Leonard ("Appeals court allows polygraph evidence, in limited way," Mar. 8), whose probation was revoked because he failed 5 polygraphs during mandatory treatment. Other than the polygraph, "appellant was halfway through his treatment plan and had faithfully attended the required meetings, participated in group therapy, and fulfilled all other terms and conditions of the treatment program," according to Judge Cathy Cochran's dissent. Moreover, "his therapist testified that the polygraph results were the only reason Leonard was discharged from treatment." Lindell explains the import of the decision:

In a 5-4 decision Wednesday, the Court of Criminal Appeals upheld Leonard's probation and prison term, saying the polygraph results were admissible in court because the information formed the basis of the therapist's expert opinion.

"Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field," said Judge Lawrence Meyers, writing for the majority.

"Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy," Meyers added.

The majority reaffirmed that polygraph results are always inadmissible before a jury.

But there is less danger of undue influence if the information is revealed during revocation hearings because there is no jury and because the judge "is not determining guilt of the original offense," Meyers wrote.

But Judge Cathy Cochran, writing in dissent, said the majority opinion employs logic that leads the legal system "down a very steep and slippery slope."

Leonard was sent to prison based solely on the failed polygraphs, Cochran wrote, despite numerous scientific studies and reports that have cast doubt on the accuracy of the tests.

"No court should admit or consider scientifically unreliable evidence," Cochran wrote, adding that Leonard experienced "not only ‘revocation by polygraph' but also ‘revocation by an expert's reliance on unreliable science.' "

The 11th Court of Appeals had reversed the trial judge's back-door theory for admitting inadmissible evidence, calling this "trial by polygraph," and that's exactly right. The Statesman headline says polygraph evidence will be allowed in a "limited" way, but Cochran's more accurate when she decries the "steep and slippery slope" down which the opinion launches the court's jurisprudence: The harm from allowing unreliable evidence as the sole basis for incarceration decisions isn't mitigated because the probation officer and/or the court deferred their evaluation to a therapist. Hokum is hokum, no matter who relies on it.

If it were one piece of evidence among a panoply resulting from an investigation, that's one thing (you'll sometimes see polygraphs used in actual innocence cases that way, particularly out of Dallas). However, as Cochran wrote, "Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence." Or at least that was the case until yesterday. Now, probationers can be revoked based on testimony from experts who base their conclusions exclusively on unreliable evidence.

Bottom line, because we're talking about sex offenders, the courts are willing to bend over backward to maximize punitive sanctions, even to the point of allowing pseudoscience to dictate sentencing decisions, as in this case. But now that the precedent has been set, you can be sure prosecutors will get more creative about probation conditions that defer polygraph use to some third party so it will be admissible when it otherwise wouldn't be. Consider the implications, for example, of using polygraphs vis a vis treatment programs associated with DWI convictions: If that happened, this decision could balloon quite quickly into a big deal affecting a lot of cases.

See Judge Meyers opinion (joined by Keller, Hervey, Keasler and Alcala) and Judge Cochran's dissent (joined by Price, Womack and Johnson). I'm particularly disappointed to see Judge Alcala was the critical swing vote for Keller and Co. on the opinion. There are a ton of junk science issues looming before criminal courts in the wake of the National Academy of Sciences reevaluation of forensics, so this blasé attitude toward relying on junk science bodes particularly ill at this historical juncture.

Bad, bad opinion. So bad maybe the Lege should act next year to say that polygraph tests can't be the sole basis for probation revocation, whether they're administered by law enforcement or a therapist at the direction of the court.

Townsend: 52% in Texas youth prisons suffer mental health problems

It's been frequently observed that adult jails and prisons are becoming society's de facto inpatient mental health facilities because they incarcerate so many offenders with serious mental illnesses. But if official data are to be believed, that may be even more true in the juvenile system. Reporting on a House Corrections Committee hearing yesterday on juvenile justice, AP says ("Mental health issues common among youth prisoners," Mar. 7) that:

More than half of the people in Texas' youth prisons have a moderate or high need for mental health care, and officials should improve their early intervention efforts to help those young people before they end up behind bars, the head of a new state agency told lawmakers Tuesday.

Cherie Townsend, executive director of the Texas Juvenile Justice Department, said more than 52 percent of teens and other youngsters held at the state's six juvenile detention facilities have been diagnosed with at least moderate mental health problems.

Including those with at least some kind of mental health care needs would make that tally much higher, she said.

"The numbers are increasing, and the percentages are increasing," Townsend told members of the Texas House Corrections Committee, referring to the number of juvenile detainees who have mental health problems and their proportion of the state's total youth population at detention facilities.

Not everybody, though, agreed that Texas youth prisons are morphing into insane asylums. One legislator suggested perhaps overdiagnosis played a role:

Rep. Charles Perry suggested authorities might be classifying too many young people as having mental health problems.

"I'm a little nervous about the discussion," said Perry, a Lubbock Republican, "because I know kids that act out that have no mental health issues, and just act out because they act out."

I don't doubt that mentally ill youth disproportionately end up in youth prisons and it wouldn't surprise me if the ratio is greater than in the adult system. But I also agree with Rep. Perry that youth in the juvenile justice system may be diagnosed with mental illnesses too frequently, and sometimes inappropriately, in hope that their behavior issues can be medicated away - or as so-called "chemical restraint." Hell, it's well known that some schools and psychiatrists promote psychoactive drugs at relatively young ages to counter children's behavioral problems, even for non-delinquents. Foster children are also reportedly overmedicated. So it's unsurprising that youth who've worked their way up to outright criminal behavior have racked up enough diagnoses and prescriptions over the years to appear on paper as though they're suffering from a mental illness. In some cases, that's surely true. But particularly with some common diagnoses, often the child's most fundamental problems stem from other issues like, say,  a crappy home life, absent or ineffective parents, poverty, grief, etc..

Recently Grits mentioned the irony that the Texas Youth Commission had prescribed an off-label antipsychotic medication more than 3,000 times during the same period that the AG was suing the company for marketing the drug for use with juveniles without adequate FDA testing. Given such examples and the ubiquity of overmedicating children, I'm not sure it's appropriate to define the number of mentally ill youth by the number receiving some psychoactive drug. Those medication decisions in some instances may tell us more about our society's desire to fix every problem with a pill than they do about the real mental health needs of the majority of Texas youth prison inmates. (Grits can't back that assertion up with data off the top of my head, but that's my sense.)

That said, I also notice Townsend's 52% number is for youth with "at least moderate mental health problems." By contrast, when similar numbers are calculated in the adult system, they only include diagnoses for the three categories of severe mental illness prioritized by the Department of State Health Services - major depression, schizophrenia, and bipolar disorder. So, though 52% sounds like a much larger number than the 1/4 to 1/3 of offenders with mental illness in the adult system, those aren't apples-to-apples comparisons. Perhaps if you included those with "moderate" mental illness in the adult system, the number would rise above 50% as well. Last week the House Criminal Jurisprudence Committee heard testimony that the adult justice system often ignores treatable mental health problems like anxiety disorders that can have as significant a crime-causing effect as the "big three" diagnoses.

What do you think? Are there disproportionately that many more mentally ill inmates in youth prisons than adult ones? Is the statistic misleading because of over-diagnosis and over-prescription? Or are youth inmates being treated at appropriate levels - dealing with "moderate" instead of only "severe" mental illness - and it's the adult system that's underdiagnosed, because the state doesn't document any but the most extreme mental ailments?

Here's the link if you want to watch the 4+ hour hearing for yourself.

Montgomery Sheriff crashes drone into SWAT vehicle

One of the first civilian law enforcement agencies in the country to purchase an aerial surveillance drones last fall, the Montgomery County Sheriff's Office yesterday crashed a drone into one of its SWAT team's armored personnel carriers during a practice run. (Please let there be video!) Further, it wasn't just surveillance equipment crashing into the SWAT vehicle which IT World reports was "being loaded with weapons and ammunition for a training exercise."

Notably, DPS at one point was using unarmed drones both along the border and elsewhere in the state, but according to the Electronic Frontier Founation DPS recently canceled its drone program because of maintenance issues with the high-tech craft. (I'd not seen that widely reported.) DPS shut down its program, they told EFF, because, "drones did not offer Texas significant advantages over the agency’s existing airplanes and helicopters."

Despite costs and crashes, though, the Obama Administration is pushing ahead to approve drone use by many more civilian agencies on US soil by this summer, reports IT World:

Expensive, crash prone or not, unmanned aerial vehicles will become far more common in the U.S. following legislation signed by President Obama ordering the FAA to approve more UAVs for law enforcement and fire/emergency uses beginning in 90 days.

The FAA has restricted use of drones domestically due to concerns that UAVs flown by untrained operators would become a hazard to other aircraft and danger to people on the ground.

The Obama order gives the FAA until Sept. 30, 2015 to make legal drones that are lighter than 4.4 pounds and fly lower than 400 feet.

They won't just be for police, though. The legislation doesn't limit the uses for which its drones can be used, which will almost certainly make life much easier for paparazzi, stalkative exes and hordes of the intrusive, nosy and curious.

It will also make life much less private for a population struggling with the loss of privacy online and, very possibly, not yet ready to give it up in their backyards to crash-prone, high-maintenance r/c helicopters that may be relatives of the Predators and GlobalHawks of the world, but without the reliability, trained operators and reason for poking their noses into someone else's business in the first place.

If the Congress and the Obama Administration are pushing drones, might a Texas Legislature that last year battled the TSA over intrusive personal searches decide to regulate them, and if so would they have any authority to do so? For that matter, do cities have authority to regulate low-flying commercial drones, or is that strictly an FAA responsibility? ¿Quien sabe?

We seem to be at a "leap before you look" moment regarding drone technology. I'm sure there are benefits, but it looks like we'll be finding out the detriments the hard way.

Christmas in March for Amarillo man freed due to flawed forensics in child death

In a story earlier featured on PBS Frontline, NPR, and ProPublica, which brings the latest news, Ernie Lopez returned home to Amarillo yesterday after the Texas Court of Criminal Appeals invalidated his conviction because his defense attorney did not call expert witnesses to invalidate the science underlying his conviction for child sexual assault. The CCA "didn't absolve Lopez, but said there was a 'reasonable probability' that he would have been acquitted had his attorneys countered the medical evidence arrayed against him." Says ProPubica:

Lopez's story reflects a broader controversy. Increasing numbers of doctors and other experts are questioning the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people who were wrongly accused of killing children based on flawed or biased work by forensic pathologists have been cleared over the last 15 years.

The Texas court's ruling set the stage for Lopez to be released Friday on a $10,000 bond. His release order bars him from initiating contact with children, though he is allowed to spend time with his three children. It also requires him to wear an electronic monitoring anklet and to abide by a 10 p.m. to 6 a.m. curfew.

At his parents' home on the outskirts of Amarillo, Lopez celebrated the events and holidays he missed during his long confinement. The family even put up a Christmas tree.

Related: TX conviction overturned because of failure to challenge junk science in child death case.

LBB to explain recidivism report

Interested in how recidivism rates are calculated in Texas? This event in Austin later this week by the Legislative Budget Board may interest some of the wonks among you.

Our second spring Criminal Justice Forum is this Friday,  March 9th  at 1:30 P.M.  The attached flier has all the details.  These forums are open and appropriate for anyone interested in learning more about criminal justice issues in Texas.  Please forward this e-mail and flier to all whom you think would be interested.

 

If you have any specific questions on the subject of Adult Correctional Recidivism, please feel free to submit them to me in advance.  This is a suggestion from our previous forum feedback forms.  We plan to give it a try this time.  Below is a link to our report I will be presenting from and my e-mail address.  Also, there will be time during and after the forum to address your questions as well.\ 

Adult Correctional Recidivism – March 9, 2012* (1:30 p.m. – 3:00 p.m.)
Presenter: Michele Connolly
LBB analysis of adult correctional recidivism includes recidivism and revocation rates for various correctional populations. Recidivism is measured through both rearrest and reincarceration rates. This forum will explore the methodology, techniques, and historical trends associated with adult correctional recidivism in Texas.  http://www.lbb.state.tx.us/PubSafety_CrimJustice/3_Reports/Recidivism_Report_2011.pdf

Piling on the Tyler Morning Telegraph over cretinous murder-case coverage

Having mentioned the other day that Kerry Max Cook is seeking post-conviction DNA testing he hopes will formally exonerate him, and that local prosecutors were blasting him for it in the press, Grits wanted to point out some keen commentary by former Dallas Morning News reporter David Hanners, the journalist who first uncovered problems with Cook's conviction. Texas Monthly's Michael Hall wrote a notable blog post titled "What the 'Tyler Morning Telegraph' failed to tell you about Kerry Max Cook," and Hanners replied with this remarkable comment (edited only to break it into more readable paragraphs).

As the reporter for The Dallas Morning News whose stories initially raised doubts about Mr. Cook’s guilt, I believe I have a few observations I can offer to the discussion. The first would be that when it comes to Mr. Cook’s saga — and there’s no other word for it — the Tyler Morning Telegraph has never acquitted itself well. I’m usually hesitant to disparage another journalist or publication, but the Tyler paper’s history of coverage in this case has been a sad entry in the annals of objective and fair journalism. The paper has, time after time, taken the word of local police and prosecutors as gospel in Mr. Cook’s case and has done little, if any, real journalism. And, as the record reflects time after time, the word of police and prosecutors in this case has not been worth much.

I am probably one of the few people who has taken an objective look at Mr. Cook’s case. I wasn’t out to convict him and I wasn’t out to set him free. When I began looking into his case, it was to try and get an answer to a very simple question: Why did it take the Texas Court of Criminal Appeals nearly eight years to rule in his case? (As I would later find out, it was because the court basically lost the file.) Whether he was guilty or innocent really wasn’t an issue to me. But as I sat in the basement of the Supreme Court Building reading his trial transcript and looking through the exhibits, it became increasingly evident to me that, at the very least, Mr. Cook had not received a fair trial and, at may well have been innocent. The record (and the Texas Court of Criminal Appeals, eventually) has proven the former, and I am firmly convinced of the latter. I just don’t believe he killed Linda Jo Edwards.

In discussing this case with others, I have often described it as Murphy’s Law personified. Everything that could go wrong, did. The initial police investigation was hopelessly incompetent and relied on pseudo-science that was bad even for 1976. The police just didn’t do what a basic police investigation would have or could have done. (To underscore that fact — and this is directed at “Kelly”[another TM commenter] — Ms. Edwards had indeed been married and divorced. I have the records and I’ve spoken to her ex-husband. At the time of the murder, he was in the military out on the east coast, and detectives made the trip out to interview him. In a bit of irony, the detectives couldn’t be bothered to head out to the university to interview Mr. Mayfield or Ms. Edwards’ co-workers. When those co-workers complained to the police about not being talked to, the detectives went out to the school and basically waited for people to come to them — in full view of Mr. Mayfield.)

As another example of the utter ineptitude of the police investigation, consider the “missing” sock. As those conversant with the case know, police said they found only one sock at the scene, and so the prosecution turned that “theft” into one of the elements making it a capital murder case and the description they offered at Mr. Cook’s trial was quite graphic: After killing Ms. Edwards, the killer allegedly cut out body parts and stuffed them in the sock and took them as “trophies” of his kill. Imagine if you’re a member of the jury and you hear that and it is never refuted by the defense. Well, no body parts were ever taken, and when the jurors in the first re-trial had the evidence back in the jury room, they opened the evidence bag containing Ms. Edwards’ jeans, pulled out out the pants and held them up. Out dropped the “missing” sock. The cops were too incompetent to even find a sock in a pant leg. That type of conduct permeates the police investigation, so it is legitimate to question how anyone can have any faith in it. Still, the “he-took-body-parts-in-a-sock” bit remains part of the accepted mythology surrounding this case.

I’ve covered many murder cases over the years and realize that often they come down to circumstantial evidence. But even the circumstantial evidence in this case had to be stretched and in some cases fabricated to win a conviction. And Mr. Cook’s initial defense team did little to nothing in the way of investigation, or at least the type of investigation you’d like to see in a capital murder case.

Over the years, I have developed my own theory and belief into who killed Ms. Edwards, and it is a theory that fits the available evidence (direct and circumstantial) and is not inconsistent with those factors. I’ll not share that theory here, but suffice to say that it doesn’t involve Mr. Cook. Not to put too fine a point on it — and this is something I’ve spoken to him about, so he knows what I’m about to say — but Mr. Cook was not a good enough criminal or a lucky enough criminal to have committed a crime of this fury and magnitude and NOT leave a ton of evidence. He was young, immature and just didn’t think that far ahead. As “iffy” as fingerprints can be, he could not have committed this crime and not left bloody fingerprints everywhere in that apartment.

I also wish to speak to the DNA evidence and the way the prosecution has handled it. I clearly remember Mr. Dobbs telling me, prior to the testing, that they were excited about the prospects of a test because the semen sample “could only have been left by the killer.” Those were his exact words to me and I remember him saying it as if it were yesterday. So then the sample is tested and, lo and behold, it belongs to someone other than Mr. Cook. Suddenly, the prosecution’s story changes. So now the prosecution says, “Well, of course it was somebody else. But Mr. Cook is still the killer.” That last point is emblematic of how the police and prosecution have behaved over the lifetime of this case. They have wanted to have it both ways. When they claimed the evidence said one thing, they claimed it pointed to Mr. Cook’s guilt, but when it was demonstrated or proven that the evidence said the exact opposite of what they claimed, they said it still proved Mr. Cook’s guilt.

Absent confessions from the guilty parties, I doubt we’ll ever know for sure what happened to Ms. Edwards. The investigation was so screwed up that it can’t be trusted and there’s no way to go back in time and fix that. You don’t get a do-over when it comes to collecting evidence from the scene of a 1976 crime. Mr. Cook deserves more than what the system has given him. For that matter, Ms. Edwards deserves more than what the system has given her. She, like Mr. Cook and justice itself, deserves the truth, and we do them all a disservice by perpetuating the lies that led to this abhorrent conviction.

Well-said; you can see how Mr. Hanners had the writing chops to win a Pulitzer. He and Michael Hall couldn't be more right about the Tyler Morning Telegraph, and this case isn't the only time the paper has demonstrated such shortcomings.

BTW, among attorneys doing innocence work, there's a phrase for the situation where prosecutors insist only the rapist and/or killer could have left the DNA, then change their theory of the case after exculpatory results come back vindicating the person they've accused, as happened in Mr. Cook's case: They're basically alleging there was an "unindicted co-ejaculator." Usually once you reach that point, the defense has already won the substantive debate and the prosecution just hasn't realized it yet, or won't admit it. But you'd expect the local newspaper to be able to figure it out.

TYC prescribed drug while Attorney General sued over its off-label use with children

Here's an ironic story from a Dallas TV station that speaks as much to the overmedication of youth in the juvenile justice system as to flaws in Medicaid billing. It opens:

The state won a $158 million settlement last month from a pharmaceutical company that the Texas attorney general said promoted an antipsychotic drug for uses not yet approved by federal regulators.

Attorney General Greg Abbott said Johnson & Johnson marketed Risperdal as the drug of choice for children and the elderly for schizophrenia and dementia even though the Food and Drug Administration had not approved its use in children or the elderly.

Yet while the state was suing J&J, the Texas Youth Commission, one of the state's largest purchasers of pharmaceuticals, prescribed it nearly 3,000 times to youth in the Texas prison system, according to financial documents uncovered by NBC 5.

The state's lawsuit, which was filed in 2006, said the state excessively paid pharmacies that dispensed prescriptions for Medicaid patients for a range of unapproved uses.

Lege committee told model eyewitness ID policy mostly well received

The House Criminal Jurisprudence Committee held a hearing this week on the implementation of its eyewitness identification legislation and invited just one witness: Rita Watkins from Sam Houston State University - whose team at the Law Enforcement Management Institute of Texas drafted the model policy mandated under HB 215, a bill authored by the outgoing chairman of the committee, Pete Gallego, who is leaving the Lege after 22 years to run for Congress.

Surprisingly, there was really only one question (with a few variants) posed to Watkins: They wanted her to respond to the letter from McAllen police chief Victor Rodriguez, discussed in this Grits post. Watkins told me later the committee hadn't communicated to her to prepare for that line of questioning, but she answered well, perhaps in part because LEMIT had already prepared a extensive FAQ (pdf) responding to the Chief's unfortunately ill-informed concerns. Plus, she's been through a long process which included convening a "working group" prior to writing the model policy that included both Chief Rodriguez and your correspondent (in my role at my day job working for the Innocence Project of Texas). Then they held a public hearing at the capitol before finalizing it. At this point, Rita and her staff have been all the way around the block on this subject, and from my observation she's handled her critics - myself included, at some points in the process - with admirable aplomb.

Bottom line: The Chief wishes the bill had not passed and does not understand it, falsely believing (or at least portraying) that his department is required by law to adopt the "model policy." They're not. It's just a recommendation. If he doesn't like it, he can adopt something else. LEMIT did what the Legislature told them to do: Write a "detailed written policy" with specific "procedures" for a number of different aspects of eyewitness identifications based on scientific research and established best practices. The committee seemed satisfied with Watkins' answers and didn't appear to give much credence to the McAllen chief's oddball letter once she explained his various misconceptions.

Anyway, it sounds like there's not a major groundswell out there among law enforcement in opposition to the model policy, at least so far. Watkins said she'd been surprised to receive just eight phone calls from police chiefs about the model policy after it was published. Five of them were congratulatory, she said, and the other three were from Chief Rodriguez. Though LEMIT dubbed its response to Rodriguez an "FAQ," apparently as a practical matter those weren't questions being asked all that frequently.

Criminal court fees skyrocketing as funds are diverted to non-court uses

When defendants pays a "DNA collection fee" as part of their court costs, one may not like it but at least one might suppose it goes to pay for DNA collection. Not necessarily, reports Eric Dexheimer at the Austin Statesman ("Hard up defendants pay as state siphons court fees for other uses," March 4) in an excellent extended story on the unhappy combination of excessive court costs for indigent defendants and the Legislature's penchant of raiding those funds for pet projects:

Over the years, legislators have used tens of millions of dollars collected from criminals to fund a slew of projects, many with only the faintest connection to the courts. Texas judicial administrators estimate that 1 in every 3 dollars raised through such state fees is spent on projects outside the court system — a practice critics say amounts to an undeclared tax on the state's poor that might violate the law. Cities and counties whose courts raise much of the state money, meanwhile, complain that their courts are drastically underfunded.

Today, court costs pay for the rehabilitation of patients with head injuries. They fund research on obesity among minority children in Houston and cover the salaries of game wardens. They support three academic centers at state universities and after-school programs for kids. And they were used to pay a private company $2 million to install cameras along the Mexico border so citizen "virtual deputies" could watch online and report illegal crossings.

Last year, elected officials raided a $20 million pot collected from criminal defendants to pay for state employee pensions.

Thanks to such maneuvering, in Texas courts, a "DNA collection fee" does not necessarily pay for DNA tests, a "breath alcohol testing fee" does not always cover breath alcohol tests, and people judged guilty of victimless crimes contribute millions of dollars every year to "victims compensation."

"We have a ‘school crossing fee' that nobody — nobody — can tell me what comes of it," said state Sen. John Whitmire, chairman of the Senate Jurisprudence Committee.

In the anti-tax, pro-spending atmosphere of the 21st century Texas Legislature, this practice has become essentially rampant, and from Dexheimer's reporting appears to have reached a tipping point: "the steadily accumulating costs, charges and fees have meant that the money the state collects from defendants has ballooned nearly 50 percent in the past five years." With inflation in the low single digits and unemployment high, that's a harsh combination.

Saturday morning reading material

Here are a few odds and ends that didn't make it into full blog posts in the last few days:

• Melissa del Bosque at the Texas Observer visits "the deadliest place in Mexico" outside of Juarez and it sounds like the aftermath of Sherman's march.
• The Burnet County Sheriff wants to reclaim managerial control of the county jail, currently operated by LaSalle Corrections, in the wake of a recent escape.
• See an interview with often-media shy (at least with the locals) Dallas DA Craig Watkins.
• Dallas PD wants to add 300 surveillance cameras, both public and "covert," in 27 parts of town.
• In Abilene, a young man was sentenced to complete college as a condition of probation. 
• The Denton Record Chronicle has an article discussing how jails came to replace asylums as the government's method of choice for dealing with the mentally ill, and where to go from here.
• Leaving aside hypertechnical arguments over its legality which have not been affirmed by any court, Big Jolly says Harris County's DIVERT program works more or less as advertised to reduce the number of defendants choosing incarceration over treatment and probation.
• In a plea deal in El Paso, Barrio Azteca prison gang members "admitted that they participated in the collection of extortion fees from drug dealers operating on BA turf, and that this money was sent to jailed BA leaders" via their prison commissary accounts.
• Can the police spy on us?
• Prison evangelist Pat Nolan says mandatory minimums are "unjust and unbiblical."

Police, defendants, social media and internet privacy

The Dallas News had an interesting item this week behind the paywall about police officers getting into trouble for outing misconduct or criticizing one another via social media and online message boards. The story opened:

The online message board postings read, at times, like a typical teenager attacking a classmate.

“She has an attitude problem and is all mouth,” wrote “Eskimo88” in one December post.

“SHES AN IDIOT,” he wrote in another, referring to the same person in a post the next day as “bat [expletive] crazy.”

But the posts weren’t made by an angry adolescent. They were published on a members-only local law enforcement message board, undergroundcop.com, by Dallas police Public Integrity Detective Jeff Baum, according to public records. He made the postings in reference to a since-fired officer whom Baum’s unit investigated for criminal misconduct.

The revelation that Baum is “Eskimo88” could threaten the credibility of pending criminal cases against former Sgt. Stormy Magiera, who is accused among other things of lying about a December Dallas robbery in which police believe she was trying to buy prescription drugs. And the case highlights a culture among some officers of gossip, rumor-mongering and personal attacks that can have career-threatening consequences in the Internet era.

“We are seeing people lose their careers over a posting on Facebook, whether it was about a crime that they went to or about another officer or about a citizen,” said Harvey Hedden, executive director of the International Law Enforcement and Trainers Association.

It's been quite the trend in recent years for police to mine social media for information about defendants, but I haven't seen it used as often to allege police misconduct. That said, allowing such unfettered, anonymous carping by employees in a criminal justice setting can become corrosive and harmful. I know Grits shut down some TYC/juvenile justice strings because of exactly that type of unproductive, personal sniping against non-public figures, and it's unsurprising, if disappointing, that the online culture in some police departments isn't much better.

Perhaps relatedly, the blog Liberty and Justice for Y'all has a post on a unanimous Court of Criminal Appeals ruling which confusingly seemed to adopt a three-pronged standard from a Maryland case for authenticating that online postings actually came from a specific individual and not just someone using their computer or posing as them. However, wrote B.W. Barnett, "While the State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury." So the court invokes a standard, then fails to follow it, but allows the evidence in anyway, declaring those methods are not exclusive. That, my friends, is outcome-based jurisprudence: Pick the outcome you want then pull a reason out of thin air to justify it.

In any event, the Tienda case will make it easier to establish the identities of police officers on sites like undergroundcop.com just like it makes it easier to prosecute workaday criminal defendants. In an odd sense, the police commenter Eskimo88 and the defendant in Tienda had somewhat aligned legal interests, at least as far as favoring a precedent that maximally protects internet privacy, forcing the state to prove authorship definitively as opposed to circumstantially.

What you say online, even anonymously, is increasingly likely to get you in trouble on the job or even with the justice system. I don't know that we've yet reached "the end of anonymity," but Internet privacy - for cops and citizens alike - certainly hangs by a tenuous thread.

'Inmate challenges pedophilia test as junk science'

The Austin Statesman's Chuck Lindell reports ("Inmate challenges pedophilia test as junk science," March 2) on a legal challenge by TDCJ inmate Michael Arena - who was convicted of sexually assaulting two young cousins when he was a teenager - to use of a particularly insidious brand of junk science aimed at sex offenders called the Abel Assessment, which is based on similar principles to the penile plethysmograph. (Try saying that three times fast.) Neither forensic technique is allowed to be used at trial under modern evidence standards - and probably shouldn't have been in this case - but the plethysmograph is still used rather frequently in post-conviction settings in Texas, particularly among parolees who're assigned sex-offender conditions. The Abel Assessment suffers from an error rate of 35-48%, according to various estimates in Lindell's article. One study found "a 42 percent false-positive rate when non-molesters were tested."

In Arena's case, his claims about the test's inaccuracy are bolstered by the recantation of both alleged victims, who say they were encouraged to lie by their mother who was going through a bitter divorce. Writes Lindell:

Though interest in Arena's case tends to focus on his claim of innocence, his attack on the psychological test could influence future attempts to challenge allegedly bad science in the courtroom — a continuing problem that the nation's appellate courts have struggled with for decades.

The test, defense lawyers say, had an unacceptably high 35 percent error rate that was not disclosed to Arena's judge and jury. It was never intended to be used to identify pedophiles, they claim, and a university study found that its results were little better "than chance" when trying to distinguish pedophiles from non-pedophiles.

In addition, the psychologist who examined Arena inflated the test's effectiveness and scientific support when he testified at Arena's trial, leading to a reprimand from a state regulatory agency four years later, court records show.

Issues with the test seemed to resonate with many of the Supreme Court's nine justices during oral arguments in January.

Justice Nathan Hecht dismissed the test as "bordering on hokum" and less likely to yield valid results than lie-detector tests, which are not admissible in criminal court proceedings.

Justice David Medina noted that a 65 percent accuracy rate would have earned the test an F in a school setting. "To incarcerate somebody for one day, you use a standard that's not even A-plus?" Medina asked lawyers for Bell County. "That seems wrong on its face."

Lawyer John Gauntt Jr. with the Bell County attorney's office acknowledged that a 35 percent error rate was "not a suitable standard" for use in court. He also acknowledged that the prosecution's expert, Georgetown psychologist Fred Willoughby, provided false testimony about the test's effectiveness in the Arena case.

Even so, Gauntt told the court, the 20-year sentence should not be overturned because Arena cannot prove he was harmed by Willoughby's testimony — a necessary step toward earning a new sentencing trial.

Lindell includes an interview with Michael Arena, speaking from a Texas prison:


Notably, this case is being heard by the Texas Supreme Court instead of the Court of Criminal Appeals because Arena was convicted as a juvenile. That's important because civil courts generally have much more rigorous standards for scientific evidence, in part because both sides in civil litigation have money to routinely hire experts. By contrast, in most criminal cases the prosecution has most if not all of the access to lab resources and forensic expertise unless the defendant pays for it or a judge orders it. These are judges who're used to seeing science in the courtroom held to much higher standards than their counterparts on the Court of Criminal Appeals, and Lindell's account of oral arguments in Arena's case shows the Abel Assessment is getting a more skeptical reception from the Texas Supreme Court than junk science sometimes receives from Judge Keller and Co. on the other side of the building.

Austin PD crime lab up for forensic commission review of drylabbing allegations

In Dallas today, a committee of the Forensic Science Commission will be vetting details of misconduct allegations at the Austin PD crime lab, specifically that they issued preliminary reports without performing any tests, a practice known as drylabbing, and produced results that contradicted findings of a private lab in at least three cases. In a complaint to the commission, a private, Dallas-area lab director wrote to the commission that, "we have worked several cases behind Austin PD's controlled substance lab and found problems so large, I feel I am ethically bound to bring them to your attention," reported the Austin Statesman in a story previewing the meeting.

Wish I could be there for it. (See the agenda.) Presumably, the FSC will discuss the case again at its April 13 meeting in Austin.

Related:

• Former Austin crime lab scientist says reports issued without testing
• More allegations at the APD crime lab
• Forensic commission reviewing Austin, El Paso crime labs

Kerry Max Cook seeks DNA testing, formal exoneration

Though I was 12 years old when Kerry Max Cook was convicted of capital murder for the first time in my home town of Tyler, I have no recollection of the original events or trial. As an adult working in the innocence movement these last few years, however, I know his case as almost iconic, tainted by flawed forensics, tunnel vision and extreme prosecutorial misconduct. After his third trial and death penalty sentence, the Court of Criminal Appeals overturned his conviction declaring that, "“Prosecutorial and police misconduct has tainted this entire matter from the outset.”

Now, more than a decade after his release from Texas death row, Cook has filed a Chapter 64 postconviction DNA testing motion "to start the ball rolling to get Cook eventually declared actually innocent," reports Michael Hall of Texas Monthly who provides an excellent, extended analysis of the case in a TM blog post.

Bizarrely, prosecutors from my home town say they're puzzled why Cook would seek formal exoneration so many years after he was sprung from death row. Just for starters, I'd say it's because Jack Skeen and David Dobbs smeared him six ways from Sunday over the course of two decades while ignoring the man who DNA evidence and an investigation by the indefatigable Centurion Ministries say is likely the real killer. More immediately, Texas recently increased compensation for men exactly in Cook's position who were victimized by false convictions. And during the 2011 session, the Texas Legislature amended the post-conviction DNA testing statute to eliminate most grounds for prosecutors to object to testing. So it makes perfect sense to me why this is happening now. Indeed, if the Tyler Telegraph or Smith County prosecutors wonder why Cook is seeking exoneration, they could have just asked him. Hall did, and his post concludes with Cook's reasoning:

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

This case represents one of the darkest moments in the history of my hometown's criminal justice system, though the saddest part is that, as bad as Cook's case was, there's still substantial competition for that "darkest" label. I know Cook sometimes visits this blog, so let me be the first here to say "good luck"; if anybody deserves ultimate vindication after traumas worthy of Job, it's Kerry Max Cook.

MORE: From Michael Hall at TM Daily Post, see "What the Tyler Morning Telegraph failed to tell you about Kerry Max Cook." Though lets face it, it would be more than a full-time job trying to plug in all the gaps that the Telegraph "failed to tell" its readers, though I understand wanting to make an exception in this instance.

Most larger Texas police departments wrote fewer traffic tickets in 2011

I think we're unraveling a trend here. After the Dallas News reported the surprising news that the number of traffic tickets issued by Dallas PD has dramatically declined, Grits found that tickets statewide have declined as well, or at least those processed in municipal courts. So Charles Kuffner at Off the Kuff looked at Houston's data and found HPD issued 200,000+ fewer tickets in FY 2011 than in 2010, more than a 20% one-year decline. This inspired Grits to compile the number of tickets issued over the last two fiscal years in some of the largest Texas cities and remarkably, the number of new traffic cases in municipal court are dropping nearly across the board:


I'd asked before what might be causing this and now I'm even more curious. These are remarkable numbers considering Texas' population has continued to grow and Texas cities have big budget incentives to write more tickets, not less. And why is San Antonio an outlier? I find the whole situation surprising and puzzling.

Check out your town's numbers if they're not on the list above. See here for FY 2010 data by city, here for FY 2011.

Police informant use contributes to tolerating crimes, solving them, and testing community loyalties

Via Alexandra Natapoff's Snitching blog, I ran across several items on the subject of confidential informants (aka, "snitches") that may interest Grits readers.

First, out of Boston, a TV news reporter raises a question that could be asked anywhere in the country: Whether confidential informants are gaming the system, "continuing to commit crimes while exerting too much control over government investigations." "'There is almost no crime that a criminal informant cannot work their way out of,' Natapoff told FOX Undercover. 'Terrorism. Drug dealing. Murder. Child pornography. Nothing is off-limits. And because of that we send a terrible message in our criminal justice system that every crime is negotiable.'"

On the flip side of that critique, Natapoff points to a story from the San Antonio Express News that I'd missed back in January detailing court testimony from a long-time DEA informant who worked infiltrating the Zetas organized crime gang on both sides of the river, including in Laredo and Nuevo Laredo. Natapoff notes the account is "unusual in part because of the generally secretive nature of informant use, but also more concretely because trials are infrequent and therefore informants rarely testify. On the extent to which informant/cartel members have become central to U.S. law enforcement in Mexico, see this previous post: NYT: Numerous Mexican drug informants benefit U.S. law enforcement."

Finally, Natapoff points to a law review article which aims to articulate "a different understanding" of the Stop Snitching phenomenon, "arguing that poor, black community members' refusal to cooperate with police investigations should be viewed as neither ethically condemnable nor inexplicable, but rather as a natural extension of the innate human aspiration to be loyal. It does so by situating Stop Snitching within the existing literature on loyalty and asserting that the refusal to cooperate with police represents a privileging of community loyalty over loyalty to the state. Throughout the various strata of contemporary society, such privileging of the familiar over the remote is common, and Stop Snitching is neither puzzling nor reprehensible when viewed as a manifestation of this manner of prioritization." (Grits has explored some of these same themes in the past.)

Fascinating stuff. Grits hasn't focused as much in recent years on the subject of informants, but I continue to believe, with Natapoff, that it's a lynchpin issue around which a lot of problematic police practices revolve. Informants are critical for law enforcement - particularly when investigating targets like insular Mexican drug cartels - yet at the same time they represent one of law enforcement's greatest points of vulnerability for corruption and abuse of power. If you haven't read Natapoff's book on snitching and have any interest in the subject, professional or otherwise, I couldn't recommend it and her work more highly.

'The Harris County Jail: The Largest Mental Health Provider in Texas'

Via press release, Harris County Sheriff Adrian Garcia tomorrow morning will address a subject I think few Texans are aware of: That the Harris County Jail is "The Largest Mental Health Provider in Texas." Media are invited to the event.

The legacy of Otis Campbell and Houston's proposed 'sobering center'

Following up on a suggestion from Harris County District Attorney Pat Lykos, Houston officials plan to create a "sobering center," reports the Houston Chronicle's Chris Moran ("Houston plans 'sobering center' at shelter instead of jail," Feb. 29), where police can take drunks instead of booking them into jail. The story opens:

City officials plan to open a "sobering center" at the Star of Hope Mission downtown later this year. It would be an 84-bed facility that would allow people whose only offense is being drunk to bypass jail.

Houston police arrest 19,000 people a year for public intoxication, racking up $4 million to $6 million in jail costs. A sobering center aims to divert drunks from jail and free up cells for more dangerous offenders. Dropping off a person at the center, instead of booking him into jail, also would let officers to return to patrol more quickly.

A person brought to the sobering center would have to stay at least four hours, until he sobers up, and would not have an arrest put on his record.

"Jail should be for violent people that we need to get off the street," not a place to merely sober up, said Councilman Ed Gonzalez, a former city police officer who has championed the sobering center idea.

The center also may do a better job than jail at addressing chronic substance abusers, Gonzalez said.

"I don't think jail is a deterrent" to chronic abuse, he said. "They consume or abuse because they have abuse issues. Punishment isn't a substantial stick anymore."

In a statement, Mayor Annise Parker declared that "Incarcerating individuals whose only criminal behavior is public intoxication diverts law enforcement from more serious or life-threatening crimes," adding that "Sobering centers in other cities have proven to be time savers for patrol officers, allowing them to quickly return to their assigned duties to deal with more serious crimes."

When Lykos first suggested the idea, Grits quipped that "In my mind's eye, I think they should call it the Otis Campbell Detox Center," comparing the tactic to "giving Mayberry's town drunk a safe place to dry out."

Every effort to divert low-level cases from the justice system is a worthy experiment, in this writer's view, but it remains to be seen how well the idea works in practice, whether HPD uses it, not to mention what criteria will be used to decide that the "sobering center" is more appropriate than the jail. For homeless frequent flyers in particular I can see it becoming a tremendous boon. And it's good to see city leaders spending on diversion programs first instead of automatically sinking more money into the city jail. According to Moran, "The city stands to save millions a year if it can offload a substantial portion of its public drunkenness cases to a facility where the detainees do not have to be fed nor as closely monitored as they would be in jail."

Kuff points to a press release on the topic, adding that "The city jails, and ways to reduce costs on them, were a subject of the Mayor’s inaugural speech." More from Hair Balls.