Texas should conduct review of hair and fiber forensics comparable to feds

Excellent news for those concerned with the lack of rigor in certain forensic science disciplines, this time hair and fiber analysis. The Washington Post reported last week ("Justice Department, FBI to review use of forensic evidence in thousands of cases," July 10) that:

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said.

The review comes after media reports alleging that the agencies had known of flawed hair and fiber analyses and covered it up. Here's a little more detail

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

It also is unclear whether the review will focus only on exaggerated testimony by FBI examiners or also on scientifically unfounded statements made by others trained by the FBI, or made by prosecutors. Also unclear is at what point government officials will notify defense attorneys or the Innocence Project.

In past reviews, the department kept results secret and gave findings only to prosecutors, who then determined whether to turn them over to the defense.

To my knowledge the FBI has only done this one other time, and then they didn't do it very well, and certainly not quickly: When actual science demonstrated that FBI experts had been falsely claiming for years that they could differentiate bullets by their lead content (e.g., "this bullet came from the same batch at the factory as the ones found in the possession of the defendant"), they had to retract the testimony and systematically identified every case in which it'd been used, leading to several cases being overturned.

But lead-content testimony was relatively uncommon: The number of times it was used at trial ran to less than 200. Hair and fiber analyses have been much more common for much longer and done at labs across the country, not just at the FBI. Will other crime labs now begin similar reviews? There's no requirement they do so, and really no process for it.

Texas, to its credit, in some ways pioneered the concept that old cases need to be comprehensively reviewed when forensic errors are found. The watershed moment perhaps was Dallas DA Craig Watkins partnering with my employers at the Innocence Project of Texas (IPOT) to review old DNA cases and recommend which ones deserved testing, a process that led to numerous high-profile exonerations and landed Watkins a feature on 60 Minutes and other national acclaim.

Similarly, the Forensic Science Commission and State Fire Marshall have partnered with IPOT to review  arson cases of people currently incarcerated in TDCJ for errors that may have led to false convictions. And after incompetent drug analysts were discovered in El Paso and at a DPS lab in Houston, the agencies systematically notified defense counsel. After the incident in Houston, the DA's Association recommended that "For any case with a bad retest, or cases with now-destroyed evidence, [prosecutors should] request that the court appoint an attorney to take the case through a writ process if appropriate."

Still, though, that's happening only on an ad hoc basis. Fort Bend Sheriff's Deputy Keith Pikett for years used highly suspect techniques in "scent lineups" which Texas courts have now disavowed. Even so, Pikett claimed to have performed scent lineups with his dogs in more than 2,000 cases and testified in court many times, but there's been no official review - by the Fort Bend Sheriff, the Texas Attorney General, the Forensic Science Commission (outside their jurisdiction), or anyone else.

In this case, analysts from Texas crime labs including at DPS testified for years about hair and fiber evidence in similarly overstated ways as the FBI, recently reining in the language they use in court and relying more where possible on much more accurate DNA evidence. Pretty much everybody agrees such overstated analyses were both problematic and used for a long time. But there's no state-level review of hair-and-fiber testimony in past cases comparable to what's happening at the FBI, neither here in Texas nor to my knowledge in other states, even though it's obvious the same issues extend far beyond FBI analysts.

Grits has long insisted there needs to be a mechanism - arguably at the Forensic Science Commission, with expanded jurisdiction - for reviewing old cases when the science behind long-used forensics are called into question or debunked. We're starting to do that when new forensic errors arise, but for the most part haven't addressed the lingering old ones like flawed or overstated hair and fiber testimony. It's time to start.

See prior, related Grits posts:

• Texas needs process to vet cases based on forensic hokum
• What is state duty to inform defendants of flawed forensics in old cases? 
• What is the duty to notify defendants of past crime lab errors?
  
• Forensic commission urges review of old arson cases based on junk science
• The politics of reexamining flawed arson foresics 
• If arson science in Willingham case was 'flawed,' what about other, similar cases?
• How best to vet old arson innocence claims?
• Faulty hair forensics used to convict executed defendant
• Hair analysis technique that was 'judicially accepted for decades' called 'highly unreliable' 

Levin: On the virtues of individualized assessment

Marc Levin of the Texas Public Policy Foundation had an exceptionally good column in the Fort Worth Star-Telegram adumbrating the growing role of individualized assessment in Texas corrections, which he argues should be reinforced in 2013 during the Sunset process. Here's a notable excerpt:

Small-town justice: No recourse for alleged abuses of power

Check out a story of alleged abuse of power by a rural prosecutor in this recent Texas Observer story by Patrick Michels. After attorney Mark Lesher won a significant legal battle in Red River County (Clarksville) on behalf of a poor, black defendant (who'd been roped into legitimate charges against a sibling), the local DA targeted the lawyer and his wife with trumped up charges of sexual assault. In the process, the DA suborned bizarrely incongruous and likely perjurious testimony by a witness with a personal axe to grind. Even local reporters didn't buy the prosecution's theory:

Lynn LaRowe covered the case for the Texarkana Gazette, and says Shannon [Coyel]'s story didn’t sit right with her. “I just couldn’t wrap my mind around them being guilty. It just didn’t seem possible,” LaRowe says. “She had so many reasons to fabricate this whole thing, and Jerry Coyel was obviously furious with Mark and Rhonda.”

The Leshers prevailed at trial and sued anonymous commenters at a Topix user forum which had become the center of local online trolling about the couple. The most prolific posting turned out to have come from computers at Jerry Coyel's business. The Leshers won a defamation suit only have the judge throw out the award in June, a decision that's presently on appeal. And of course, the District Attorney has "absolute immunity" for his role in this lurid affair. The subtitle to the Observer story says it all: "In an East Texas county known for corrupt law enforcement, Mark Lesher fought the justice system—until it came for him too." Quite a malefic tale; read the whole thing.

Criminal investigations focused on two DPS staffers over homeland security contracts

Rare and welcome coverage yesterday by Brenda Bell at the Statesman of contracting irregularities at the Department of Public Safety in a story which opened:

The Travis County district attorney's office is pursuing two separate criminal investigations into contracting irregularities at the Texas Department of Public Safety, the American-Statesman has learned.

The investigations follow the departure of two high-level DPS employees in the past 18 months: Janice Bruno, director of the State Administrative Agency, which handled more than $1 billion in federal Homeland Security grants between 2006 and 2011, and Mark Doggett, the chief information technology officer for DPS. ...

DPS Director Steven McCraw suspended Bruno in December 2010 and ordered an investigation by the Texas Rangers into a procurement agreement initiated by Bruno with the North Central Texas Council of Governments in Arlington to create a centralized computer system for managing Homeland Security grants all over the state.

Ms. Bruno insists she did nothing wrong and said she welcomed a grand jury investigation.  But she's not the only one from DPS in trouble over homeland security contracts:

A second and apparently unrelated DPS investigation began in March of this year after McCraw suspended Doggett, citing "allegations of misconduct." Doggett resigned in April and could not be reached for comment.

Doggett was in charge of the information technology division of DPS, which runs the law enforcement agency's statewide databases for criminal records and motor vehicle registrations, among other things. This year, the division spent $29 million for outsourced computer programming, through professional services contracts that do not require competitive bids.

DPS denied the Statesman's request for more information about the Doggett matter, saying public disclosure would interfere with the ongoing criminal investigation. Texas Attorney General Greg Abbott's open records division supported the denial.

With DPS having outsourced so many homeland security functions to private contractors, contract and grant oversight becomes a much more important function for the agency. That's a specialized skill set and not necessarily already part of somebody's job description when an agency outsources this or that function. DPS historically has had trouble managing operations outside its regular command structure, and Grits won't be surprised if the recent raft of homeland security contracts becomes an ongoing source of trouble for Col. Steve McCraw.

Texas crime labs ill-equipped to handle coming volume of touch-DNA cases

The lede to the Nature News blog article mentioned in the last Grits post described a fascinating occurrence of faulty forensics I hadn't heard about: "Investigators who linked DNA from Occupy Wall Street protesters to a murder scene in New York City recently admitted that they’d made a mistake. No one was locked behind bars, but all too often they are."

Yikes! Yes the DNA will always match if you're repeatedly testing your own! Further evidence, if it were needed, that sloppy lab work can lead to false accusations. (And that lab workers' DNA should be routinely collected.)

Anyway, the link about the Occupy protester leads to a related July 11 story in the New York Times describing the expansion of the use of so-called "touch DNA" by law enforcement, which included these interesting tidbits about New York City's massive, and growing DNA caseload:

The ability to analyze such samples, which are known as “touch DNA,” has allowed investigators to use DNA from scenes where bodily fluids may be absent, Dr. Prinz said. Investigators said that the more heavily the suspect was sweating, the more likely he or she was to leave a useful touch DNA sample.

In 2011, the city medical examiner’s office issued some 11,000 reports involving DNA collected from crime scenes, compared with about 3,000 in 2006, Dr. Prinz said. Reports generally correspond to a single incident, and may involve multiple samples.

Last year, about 32 percent of the incidents in which DNA was sought were property crimes, primarily burglaries and robberies, Dr. Prinz said. Homicides make up only 6 percent of the incidents from which DNA is sought, and sexual assaults are an additional 20 percent. Recovered weapons are swabbed for DNA, too, and account for about 10 percent of the caseload. The remaining cases, Dr. Prinz said, involved DNA taken directly from known suspects for comparison, as well as an assortment of missing person cases, hate crimes, arsons, and other crimes.

In 2011, the medical examiner’s office entered DNA profiles taken from about 2,050 criminal events that year into the F.B.I.’s DNA database. About 24 percent of those resulted in a match against the DNA profiles of known individuals, she said. 

DNA testing in real life is not like on CSI where the computer instantly comes up with a match. In the real world making that determination can take many hours of staff time. This source estimates 54 sequential staff hours per test in a typical rape case; more in a more complicated investigation. DPS labs can process about 518 DNA cases per month, according to a 2010 federal grant request aimed at reducing backlogs. At that time, the agency told the Justice Department, DPS had 75 DNA technicians who could each process about 16.4 samples per month. So this is a labor-intensive process for the lab workers and can't be scaled up quickly.

I don't think Texas' DNA caseloads are quite so laden presently with property-crime cases as in New York, but there's a significant, statewide push from the media and grassroots neighborhoods groups to use crime-labs that way. If they did, they'd both catch more crooks and also generate a few more false positives. But of more immediate importance, it would dramatically boost demand for DNA testing at a time when lab capacity will likely remain flat, at best. Indeed, a new fee-for-service lab in Montgomery County is unexpectedly closing.

Grits expects Texas labs to expand use of touch DNA because the public and local law enforcement will demand it. But I also expect problems to arise including utterly insufficient lab capacity, a lack of qualified, trained personnel (particularly at labs outside the main urban areas), and delays for agencies that don't use fee-for-service labs or perform the work in-house. DPS, to their credit, just finished  a major expansion of their statewide crime lab system. But that hasn't and likely won't eliminate DNA backlogs, which the agency told DOJ have reached as long as 10 months.

Texas has made enormous investments at the state and local levels to expand and professionalize its crime labs over the last seven years. But crime lab volumes are at the beginning of a scary-steep growth curve which, even after those investments, the state appears ill-equipped to handle. In the end, the expansion of DNA use to solve nonviolent crimes will likely be limited by law enforcement's willingness to pay for that service on a per-test basis, which is increasingly the only alternative for waiting months for DPS. From a politicians' perspective, that's when "tuff on crime" runs smack dab into "no new taxes."

New federal legislation would pump $300 million into basic research, standards development for forensic science

The Nature News blog on Friday brought details of new federal legislation to fund  research and improve standards in forensic science, at least if Congress is willing to put up $300 million over the next five years, a fact which I hope doesn't stall this much needed investment in one of government's primary functions:

A piece of legislation proposed yesterday seeks to end wrongful convictions through better forensic science.

House and Senate Democrats say the Forensic Science and Standards Act would spur additional research and higher standards in forensic work.

“To ensure justice is being served, we want law enforcement and forensic practitioners to work alongside scientists and researchers to make sure that forensic evidence stands up to scientific rigor,” said Representative Eddie Bernice Johnson (D-TX) in an official statement.

The bill calls for the creation of a forensic science committee chaired by the National Institute of Science and Technology (NIST), which would assess how to best handle material from a crime scene, for example, and issue guidelines. Meanwhile, basic research into new forensic science tools and techniques might fall under the guise of a proposed National Forensic Science Coordinating Office, housed at the National Science Foundation (NSF).

Over the next five years, the bill would provide $200 million in grants for forensic science research, and $100 million for the development of forensic science standards.

Democrat Sen. Jay Rockefeller of West Virginia is sponsoring the bill in the Senate. Heaven knows, though, if a spending bill that size(virtually a rounding error in D.C. these days) sponsored by two Democrats will have a chance in the next Congress. ¿Quien sabe? It probably wouldn't be wise to start counting the money just yet, but it got Grits wondering: Which Texas universities might be in a position to perform research under such federal grants?

Sam Houston State (in Huntsville) and Texas State (in San Marcos) both have active forensics programs, as does Prairie View A&M. In Lubbock, Texas Tech has a relatively new Institute for Forensic Science. The University of North Texas (in Denton) has a forensics program. Texas A&M has a relatively new Forensic and Investigative Sciences program; it's not large, graduating just nine students this spring, but it could be a vehicle through which to receive federal research funding. Another outlier may be Baylor: Somewhat tellingly, they used to have a forensic-science track, but merged it with Anthropology once Texas state law required accreditation and the school wouldn't spend the money (as A&M did this year) to bring the program up to accredited standards. Who else am I missing, gentle readers, help me out ... what Texas universities might be in a position to perform some of this primary research?

Because of funding sources, most Texas university forensic programs, from what I know - with a few notable exceptions like the "body farms" at SHSU and Texas State - seem focused more on training forensic technicians than performing primary research. Indeed, it may be that scientists from more traditional scientific fields end up with the lion's share of NSF research funds since they're more immediately equipped to perform primary research and can readily apply their techniques to forensics, treating it as a subset of chemistry, biology, statistics, etc.. That's certainly what the authors of the National Academy of Sciences' 2009 report on forensics were hoping would happen, applying the scientific method to common forensic practices which in some cases have never been verified by science.

In any event, if the bill passes, a nine-figure influx of federal funding into the forensics field would provide impressive, near-term opportunities for university researchers positioned to take advantage of it.

Ed. note: The original piece was edited to correct the bill authorship.

Why does fighting crime in East Austin always mean ramping up the drug war?

How is it that Austin police continue to arrest hundreds of people on petty drug charges in the neighborhoods surrounding the 12th and Chicon corner, but neighborhood groups still complain about underpolicing? Maybe that's the surest sign that past git-tuff efforts like the city's now-defunct "weed and seed" program were misguided and focused on the wrong priorities.

Following up on Jordan Smith's coverage of East Austin policing and prosecution tactics (and Grits' reaction), the Austin Statesman published a related story ("Neighbors, police look for right approach to clean up East Austin neighborhood," July 13) that included this chart (see below the jump) which graphically depicts Austin PD's drug-war myopia when it comes to policing this area (a jurisdiction, btw, which includes Grits' own neighborhood.) Astonishingly, 91% of arrests among the categories listed were for drug and narcotics violations, though most of the public attention has been paid to a handful of episodes of violent crime. If APD is operating under the (common) theory that arresting people for drug crimes preempts other types of offenses, it's not necessarily an effective approach in the 78702 zip code.

There's strong reason to believe most Central East Austin drug busts aren't nabbing "big fish." Though the geographic overlap is not precise, Austin's Krimelabb database recorded that Austin PD made 297 arrests for marijuana possession in 2011 in the 78702 zip code; with another 399 arrests in 2011 for harder drugs - mostly possession - and another 83 delivery arrests sprinkled in. The KrimeLabb database doesn't break out how many of those were less-than-a-gram state jail felony cases, where in many cases probation is mandated by state law on the first offense. Similarly, what proportion of those arrests occurred  at so-called open-air markets, these data do not reveal. But intensified policing in Central East Austin, both historically and almost certainly in the current context, has meant ramping up the drug war through arrests of large numbers of young black men. This is not at all a left-right issue. After all, both the current Travis County DA and her long-time mentor and predecessor, Ronnie Earle, are dyed-in-the wool Democrats and considered the most liberal elected prosecutors in the state. And the Austin City Council members whose priorities guide APD are for the most part yellow-dog Democrats.This particular mumpsimus enjoys a strong, almost unfailing bipartisan consensus (which of course makes the approach and its myriad proponents no less misguided).

Consensus among law enforcement and the political class aside, Grits remains unconvinced such a myopic focus on prosecuting the drug war gets to the heart of crime problems people really care about most. It was remarkable to me that 98% of wiretaps in Texas were used in narcotics cases. The drug war has swallowed up modern American policing, courts, jails, probation rolls, and (to a lesser extent than those other categories) prisons. By contrast, according to KrimeLabb data, Austin police made just five arrests in response to 200 burglary of a residence reports in the 78702 zip code in 2011, and another 5 arrests out of 109 burglaries of non-residences. Due to limited staffing resources for non-uniformed slots, APD's crime scene unit only shows up at less than 40% of reported burglary sites. So it's easy to see from these data which types of offenses Austin PD prioritizes, and the problem is decidedly NOT that there are too few drug arrests made in Central East Austin.

Bring a Nickel: Max enforcement alone won't stymie open-air drug markets

Early in the evenin' just about supper time,
Over by the courthouse they're starting to unwind.
Four kids on the corner trying to bring you up.
Willy picks a tune out and he blows it on the harp.

Down On The Corner, out in the street,
Willy and the Poorboys are playin';
Bring a nickel; tap your feet.

- John Fogerty, "Down on the Corner"

Grits is glad to see Jordan Smith at the Austin Chronicle reporting that the Travis DA has rebuffed demands from neighborhood groups to use a git-tuff approach on open-air drug dealing in Central East Austin near my own neighborhood. When six neighborhood groups petitioned the city to use an "enhanced prosecution" program used downtown - beefing up penalties sought for crimes committed in a certain geographic area - Grits argued the neighborhood setting was a poor fit for this tried-and-failed tactic and suggested something more like the High Point program, which as it turns out, reports Smith, was begun in part by a former Austin police official. According to Smith's johnny-on-the-spot reporting, that's precisely the approach the DA's office will take.

First, to tell you a little about the area we're talking about, which is perhaps a mile east of the state capitol building, here's an overview from Ms. Smith describing "The Corner," a downtrodden spot which has inexplicably earned capitalization:

The issues of crime and drugs at 12th and Chicon are not new; it is a place that criminal justice officials have long known as an open-air drug market bustling with associated crime, some of it violent. Veteran Austin Police officers and longtime residents say the culture of The Corner has been the same for nearly 40 years. Both old and new residents are tired of the crime and blight that the drug market brings with it, and they're frustrated that city and county officials have never made the kind of commitment to the neighborhood that it would take to clean up the area.

She adds:

For years police have done sting and long-term undercover drug operations here; they've netted many arrests but generated no long-term change. There was the Central East Austin Weed & Seed Initiative, a federally underwritten effort to reduce crime, improve social services and other community resources, and concentrate community policing efforts, in order to maintain police visibility and strengthen the community-police partnership.

Whether Weed & Seed had any positive effect on 12th and Chicon depends on whom you ask. There were plenty of "weeding" arrests, but not so much "seeding."

Unfortunately, "enhanced prosecution" is little different from the "weed and seed" strategy:

Whether enhanced prosecution (or sit-lie, for that matter) could work at 12th and Chicon is a matter of debate – and beyond that, the idea of rounding up and sending to prison every bad actor associated with that corner isn't universally appealing to neighbors or local officials. For too long, rounding people up – including many young, black males – was the only approach used at 12th and Chicon. It hasn't exactly had any lasting effect, except to brand a large number of people as felons, making it even harder for them to find a way off The Corner.

So the question facing neighbors and public officials remains: What would it take to clean up 12th and Chicon and improve the quality of life for everyone once and for all?

This is an area that's recently become a jumbled melting pot of different ethnic and income groups. Many black families with roots here from the segregation era have moved away seeking both better schools and lately, cheaper housing. For a while, mostly Spanish-speakers took their place, but lately it's been yuppies and Bohemian types who can't afford a spot downtown. Today in my neighborhood it's not uncommon to see new two and occasionally three-story homes being constructed in narrow lots next door to small slumping shacks.

A big source of the current outcry, as Smith had aged neighborhood activist Scottie Ivory point out in the story, is that Central East Austin is rapidly gentrifying and the new, more upscale residents aren't willing to tolerate either drug dealing or the array of black and grey market activities that accompany it. In my own neighborhood, there's even been opposition to legal, black-owned businesses. Some newbies even want prosecution for petty code violations nobody ever thought of enforcing before. So the neighborhood is changing and folks with marginal and particularly black-market incomes will eventually be squeezed out by basic economics (led by skyrocketing property taxes and utility bills) before police and prosecutors ever solve the problem, in this writer's estimation.

The big factor I see in this neighborhood that contributes more than anything to open-air drug sales, and which regrettably is addressed by neither the neighborhood's nor the DA's approach, is a lack of focused effort to provide guidance and opportunities to children of incarcerated parents, who are the primary labor source for street-corner drug markets.

About half of the 158,000 Texas prison inmates have minor-age children, and quite often those kids drift once Daddy (or less often, Mommy) goes away and young people migrate to the few alternative, entry-level opportunities available to them that provide meaningful pay. According to TDCJ, "Without intervention, children of incarcerated parents are six to eight times more likely to become involved in a criminal lifestyle." That's such a high-risk group - both statistically and in Grits' own personal observation in this neighborhood - that if it were possible to keep greater percentages of those kids out of trouble, even just reducing the numbers at the margins, there would be a big multiplier effect regarding the amount of crime reduced.

The High Point model (see a manual [pdf] on the idea from the USDOJ) offers a modest alternative to just arresting everyone, though as DA Rosemary Lehmberg pointed out the approach doesn't preclude tough prosecution. Instead of arrest and immediate prosecution, they bring in young people to be confronted by their grandparents, their minister, and any other people in their extended circle who want to help. If that person commits to a change, they make that commitment not just to law enforcement but their own family and immediate peers. This, it turns out, works often enough to make a difference.

As it turns out, Prof. David Kennedy, who was one of the intellectual authors of the High Point model will be in Austin today and attending an invitation-only brown bag luncheon hosted by the Texas Public Policy Foundation, which I regrettably will have to miss. See Kennedy's much-remarked book describing the High Point approach.

Thankfully, it's also a model that can be replicated when crime displaces. For example, at various times there's been a smaller open-air drug market closer to my home at 14th and Cedar. Chase folks away at Chicon and I've little doubt some will just move there, and elsewhere. Black markets migrate in response to enforcement (as law enforcement along the border will attest). So long as demand exists alongside a desperate workforce, history demonstrates beyond doubt that geography will not constrain the intersection of supply and demand.

Having lived in this neighborhood 22 years, over and over I've witnessed the unintended consequences of so-called enhanced prosecution, weed-and-seed, or what have you. Frequently that solution creates new problems which aren't openly discussed or often even noticed. Those families aren't going away just because one or more child/sibling is incarcerated. That person nearly always returns, now more dependent on the family's limited resources than ever, and with few prospects. Anyone who thinks the solution is merely to maximize punishment isn't seeing the long view, particularly when we lock somebody up but ignore the kids they leave behind: the ones who will start the cycle over again.

Young people, especially children of incarcerated parents, need to see some path to a better life or at least financial survival. Slinging dope doesn't pay a lot; quite a few folks doing it at 12th and Chicon would do something else, something legal, if they could get paid for it. Drug sales and petty crime at what Smith dramatically dubbed "The Corner" - there's certainly nothing glamorous about it - are so persistent because of the desperation of those involved. And fundamentally, the solution to desperation is not punishment, but hope.

Are counties on the hook for debt issued by 'nonprofits' they create to oversee jail bonds?

Having yesterday mentioned Montgomery County's entrepreneurial jail scheme gone awry, I should mention another instance where a county in South Texas (Willacy County - Raymondville is the county seat, such as it is - just north of Cameron) must finagle a way out from under a growing pile of debt related to financing the Willacy Detention Center, which has failed to achieve the projected number of additional inmates after an expensive, recent expansion. A July 9 story from the Valley Morning Star on the controversy opened:

Willacy County’s debt for privately operated prisons has swelled to the point where the county may never be able to pay it back, District Attorney Bernard Ammerman says.

Comparing the debt to the ill-fated ocean liner Titanic, Ammerman says a private prison deal is on a collision course with an iceberg of debt that will sink the county financially.

But County Judge John F. Gonzales Jr. and others say the district attorney is wrong, countering that Ammerman does not understand the types of bonds used to refinance the prisons.

Attorneys who advise the Willacy County Local Government Corp. say the county and its taxpayers are not responsible for the debt connected to the so-called “tent city” detention center near Raymondville.

The debt has grown as a result of construction and renovation costs at the “tent city,” Ammerman said.

The detention center, originally built to house illegal immigrants, was refinanced last year and converted to house low-risk federal inmates from the U.S. Bureau of Prisons in the last year of their sentences, Gonzales said.

A new agreement with the federal government assures the county there will be a steady stream of income from the contract to house prisoners, the county judge said.

The Bureau of Prisons has contracted for 90 percent of the beds in the “tent city” or “dome structures,” and must pay whether they are used or not, he said.

The facility is operated by Management and Training Corp., which also ran the illegal immigrant detention center, he said.

The DA also accused county commissioners of improperly raiding the WCLGC for other projects.

Like in Montgomery County, where commissioners may sell a local prison set up under a nonprofit financing structure to avoid debt liability, Willacy County created a nonprofit, this one with two commissioners among five board members, which ostensibly carries the debt. According to the bond prospectus (large pdf, p. 19), "The Issuer [of the debt] is a nonprofit corporation formed on behalf of the County pursuant to the Act and Resolution Authorizing the Creation of the Willacy County Local Government Corporation of the Commissioners Court of the County (the 'Commissioners Court') adopted on June 19, 2006. The Issuer was formed for the purpose of financing the Facility for and on behalf of the County. ... In addition, the Commissioners Court has the right at any time to dismiss any director, for cause, or at will, and to appoint a successor to take his or her place."

It is true that the bond prospectus specifically states that, "The Series 2007 Bonds do not constitute an obligation, either special, general or moral of the County, the State, or any other political subdivision thereof." But given the level of control exercised by the commisioners court over this nonprofit - including authority to dismiss directors at will - it's wishful thinking for the County Judge to pretend that means the county won't take a severe hit on its credit rating. They'll be in the position of Germany, forced to bail out Greece in order to save the Euro.

The DA's main argument wasn't that the county was directly, legally liable, but that “Primarily our credit rating will go to junk status even more. We’ll never be able to have any type of bond issuance for anything.” He's absolutely right about that: Bond ratings agencies would consider a default by the Willacy County Local Government Corporation a major black mark and downgrade current and future Willacy County debt, raising costs to deliver government services across the board. Their just-a-little-too-smart-for-their-own-good Chinese wall may formally protect them from liability on paper, but it won't protect them from the harsh judgments of bond ratings agencies nor those who might lend the county money in the future. That old mumpsimus ignores reality.

The 2007 bond prospectus actually foresaw (p. 7) that the nonprofit's ability to pay the bonds is predicated on continued high occupancy:

The continuing demand for the beds in the Facility is predicated on the assumption that demand for detention space, in the aggregate, will continue to exceed the supply of available space. However, due to economic, social, and political factors, it is impossible to predict whether this assumption will hold true. In general, the closer the supply of bed space comes to meeting or exceeding the demand therefor, the more difficult it will be for the Issuer to house inmates at an occupancy level and at per diem rates which will generate Facility Revenues sufficient to pay principal and interest on the Bonds and to pay Operation and Maintenance Costs.

But that was written before the incarceration bubble began to burst. Today, the market has changed and there are many facilities competing for fewer contract inmates, leading some market analysts to argue against private prisons' long-term viability as investments. If the Willacy Detention Center can keep its inmate numbers up, they shouldn't have a problem. If they can't, commissioners would be foolish to suppose the county won't pay a price in the bond market for creating its own pet nonprofit, issuing a bunch of debt through it, then walking away.

Texas Tribune seeking solutions for prosecutorial error

The Texas Tribune has completed its series on wrongful convictions, their causes, and available remedies, with a special focus on issues surrounding prosecutorial error and misconduct: Here's their roundup of links to their various stories - "Seeking  Solutions" is a 12 minute video summarizing the key issues, focusing mainly on Michael Morton's exoneration:

Seeking Solutions

by Brandi Grissom, Justin Dehn and Ryan Murphy
July 10, 2012 

 

Michael Morton’s 2011 exoneration brought to a crescendo calls for change in the way that prosecutors are regulated in Texas. Morton, prosecutors and criminal justice reform advocates talk about why prosecutorial errors happen and how they can be prevented.
Full Story 

Related:

• Son Seeks Answers in Father's Wrongful Conviction
• Prosecutor Errors Haunt Long Exoneration Fight
• Courts Found DA Error in Nearly 25% of Reversed Cases
• Interactive: Texas Wrongful Conviction Explorer

Grits had discussed possible state legislative solutions (or, at least, preliminary reform measures) regarding prosecutor misconduct here and here.

Health clinic hours reduced 50% at some Texas prison units because of budget cuts; Ogden says prison health budget underfunded 15%

Clinic hours at some Texas prison units were cut by up to 50% in the wake of recent budget cuts, Texas Tech officials told state senators on Monday.

The Texas Senate Finance Committee met yesterday to address correctional managed health care. Go here to watch the hearing online. The only MSM coverage appears to be from Chris Tomlinson at AP. The money quote from that story: "Dr. Denise Deshields, the health director of Texas Tech University's prison health care system, said the new cut could lead to an unconstitutionally low level of care. 'I don't know how we would possibly handle an additional 10 percent reduction in appropriations. We are really cut down to the bone as it is,' she said."

Further, "The vice president for offender health services at the University of Texas Medical Branch, Dr. Owen Murray, said that because of staffing cuts guards are now expected to help make medical decisions that nurses and doctors once made."

Grits listened to much of the hearing this morning. Here are a few tidbits the abbreviated AP story didn't pick up:

Entrepreneurial prison scheme in Montgomery County may lose tax-exempt status for too-few local inmates

The blog Texas Watchdog brings word of another county level public-private jail scheme seemingly gone awry, drawing a federal investigation that could result in the loss of non-profit status for a separate corporation set up by the county to run the operation. Grits discussed the arrangement (and the risks) in some detail back in 2008. The problem: Projections of ever-rising numbers of county inmates never materialized, and if the jail is not being used for county purposes, it's just an entrepreneurial project, not deserving of non-profit status. Reported the Conroe Courier:

The Montgomery County Jail Financing Corporation was created, in part, to seek financing through bonds exempt from federal taxes. But the approval by the Internal Revenue Service in 2006 was based on a ruling request stating federal prisoners – including those from the U.S. Marshal’s Office and Immigrations and Customs Enforcement – would occupy an average of 70 percent of the 1,100 beds in the facility, according to county documents.

The Joe Corley Detention Facility started housing its first inmates in August 2008.

In that same ruling request, submitted by Houston law firm Fulbright and Jaworski LLP on behalf of Montgomery County, after the initial five-year operating period, “(the) county expects that the number of county prisoners or prisoners of other local governmental entities in the county housed in the Jail will exceed 30 percent of the beds. Eventually, County expects that non-federal prisoners will occupy close to 100 percent of the beds in the Jail.”

But no county inmates are being housed in the Joe Corley Detention Center, County Judge Alan B. Sadler said Friday.

“We would be losing our tax-exempt status because there aren’t enough county inmates in Joe Corley,” he said.

If Montgomery County lost the tax-exempt status for the approximately $45 million in bonds it issued to cover construction costs and associated fees, Sadler said, “the tax implications would be huge.”

He and commissioners “did not anticipate” the potential loss of the tax-exempt status for the detention center, he said. 

Commissioners "did not anticipate" the possibility the jail wouldn't fill up and risk the viability of their deal, but Grits did. So it wasn't that the problem couldn't be anticipated, but county officials thought they could get something for nothing. In politics as in life, though, there's no such thing. For a while these sorts of "partnerships," which socialized risk while privatizing profits, were achingly common among Texas counties.  But they fostered utterly predictable perverse incentives that came back to bite those jurisdictions when the private prison bubble began to burst. Now Montgmery County wants to sell off its bad investment. Perhaps they'll find a buyer - the GEO Group, which presently operates it, is reportedly interested - but it'd be worth checking in with the City of Littlefiled to see how that endgame strategy worked out for them. Private prison companies typically only want to buy facilities where pols are foolish enough to guarantee them inmates.

What limits should exist on police use of personal cell-phone records without a warrant?

Grits was admittedly surprised at how few wiretaps were being approved in Texas state courts, but I'll bet this news explains where Texas agencies are going for detailed information about suspect phone records. The story in the New York Times (July 8) opened:

In the first public accounting of its kind, cellphone carriers reported they responded to a startling 1.3 million demands for subscriber data last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The data, which come in response to a congressional inquiry, document an explosion in cellphone surveillance in the past five years, with wireless carriers turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

"I never expected it to be this massive," said Rep. Edward J. Markey, a Massachusetts Democrat who requested the data from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement's expanded use of cell tracking. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers' responses available to The Times.

Though the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across various levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

AT&T now responds to 230 emergency requests a day nationwide — triple the number it fielded in 2007, the company told Markey. Law enforcement requests of all kinds have been rising quickly among the other carriers as well, with annual increases of between 12 percent and 16 percent in the past five years. Sprint led the way last year, reporting more than 500,000 law enforcement requests for data.

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough. Moreover, rapid technological changes in cellphones have blurred the lines on what is legally required to get data — particularly the use of GPS systems to identify the location of cellphones.

The Wall Street Journal mentioned the particular concern regarding "cell tower dumps," which are "requests that carriers provide all the phone numbers of cell users that connect with a tower during a specific period of time. Those phone numbers could include suspects as well as ordinary people making calls in the same area."

At a minimum, Grits thinks cell phone users should be notified when law enforcement access their personal data without probable cause. And given their ubiquity and the amount of personal information on them, searches of seized smart phones should require a warrant. I've not thoroughly thought through, though, every nuance of what that would entail or what other protections may be necessary. Lately it seems like privacy advocates have been playing defense more often than not, fighting intrusive legislation instead of proposing new protections. There's been less discussion, that I hear, anyway, about what new protections are needed.

Written in the 18th century prior to the existence of municipal police forces, much less modern technology, the Fourth Amendment to the US Constitution offers flimsy protection at best from governmental (much less corporate) intrusions into personal privacy, which can be breached by technology much more rapidly, it seems, than the law can react to protect it.

The federal courts have all but abandoned the Fourth Amendment as a legal doctrine that meaningfully constrains government, which means in the near term we must rely - God help us - on the legislative branches, national and state, to limit abuses which would have seemed in the realm of science fiction back when today's Supreme Court justices were in law school. Unfortunately, legislative trends lately have run the other direction. (As the Journal reminded us, "In August 2007, Congress revised national-security surveillance statutes to allow the government to wiretap electronic communications without a warrant as long as one party is overseas.")

That puts the ball in state government's court, and leaves this writer wondering what legislation  might (or should ) be filed at the Texas Legislature to restrict or at least document the nature and scope of law enforcement monitoring of personal phone records.

SHSU crime lab abruptly shuttered, Fort Worth PD looks to re-open DNA section a decade after failures

The loss of a new fee for service crime lab run by Sam Houston State in Montgromery County will put more pressure on the Department of Public Safety crime labs ad possibly add to their already too-long wait times. Reported the Conroe Courier:

The loss of the Sam Houston State University Regional Crime Lab, which opened in November 2010 in The Woodlands, will mean significant delays for results in testing evidence such as blood-alcohol and toxicology tests, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

The crime lab will lose its current home in September because the landlord has found another tenant, said Dr. Vincent Webb, dean of the College of Criminal Justice at SHSU in Huntsville and director of the university’s Criminal Justice Center. ...

With the loss of the SHSU crime lab – which serves more than 70 agencies – Montgomery County now will have to send tests to a Texas Department of Public Safety Regional Crime Lab in Austin, which serves many more clients, Diepraam said.“With the Regional Crime Lab, we got results in a week or two,” he said. “Unfortunately, the DPS lab has a backlog of cases. For drug toxicology tests, it could take six to nine months to get results. That’s a concern to the district attorney that we’ll have people staying in jail while we’re waiting on results.”

From November 2010 to October 2011, the Regional Crime Lab ran 1,034 drug toxicology tests, with 900 of those from Montgomery County, Diepraam previously said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

Conversely, the Fort Worth PD crime lab hopes to expand capacity in its lab for DNA work, reported the Star-Telegram, after shutting down a decade ago "amid backlogs and accusations of shoddy work and contamination."

The lab's two forensic scientists will begin working cases Monday, crime lab Director Tom Stimpson said Thursday. With the training of three other scientists at least six months away, Stimpson said, he hopes that the Police Department can stop outsourcing most DNA testing within a year.

"The benefit to the department for us really is going to be the turnaround time and the selection of what we can test," Stimpson said. "Now we're in full control of our evidence. We can test what we want and when we want it."

And the savings, he said, will be significant.

Grants cover some testing by the University of North Texas, but the Police Department must pay roughly $250,000 a year to Orchid Cellmark, a Dallas-based company, for other analyses, he said.

Putting a rush on a DNA order costs even more. "With Orchid, because they're a business, we were paying them a premium of about $500 a sample over and above what the regular cost was to have something done within a week or 15 days," Stimpson said.

An in-house DNA unit will also save money for the entire Police Department, because a faster turnaround can mean quicker arrests, he said.

Since Fort Worth was contracting with a private provider for DNA services, their new lab won't take any pressure off DPS' caseload, at least directly, but it will add to the state's overall lab capacity once it opens.

Read more here: http://www.star-telegram.com/2012/07/05/4081673/fort-worth-polices-crime-lab-preparing.html#storylink=cpy

Man deemed incompetent held 20 years without trial for attempted murder, may be released

Eric Dexheimer at the Austin Statesman brings an update on the case of Brad Reinke, a man deemed incompetent to stand trial for attempted murder of his father 20 years ago ("Mentally ill defendant up for release despite fears he could return to violence," July 7). Now that he's spent longer incarcerated in jail and state hospitals than his sentence would be if he'd been convicted, the Court of Criminal Appeals has ordered him released, leaving prosecutors scrambling to keep him incarcerated.

Here's the Court of Criminal Appeals ruling on the case, which was fairly narrow, simple and unanimous. They said that the law is clear Reinke must be released when he's been held as long as the max sentence for the crime for which he was to be tried. Travis County prosecutors argued that should be read to include any possible sentence enhancements based on past offenses, but the court held that those cases had already been adjudicated, and that the only case for which Reinke was "to be tried" was the attempted murder beef.

This circumstance highlights the flaws of treating the criminal justice system as the main access point for indigent mental health care. It's the old problem: When the only tool you have is a hammer, everything looks like a nail. The law allows for civil commitment if Reinke is still dangerous - and some still think he is - but his recent behavior record at the hospital has been good and may disqualify that option.

For 20 years Travis prosecutors have kicked this case down the road until now they can't anymore. Finding other options for Reinke outside the forensic mental health system has never been a priority to the state because they already had a justification for locking him up without a trial. But that was never a permanent solution, which has now become clear. If he's dumped from the jail to the streets after 20 years with little support or supervision, that's the worst possible outcome from his long-term legal limbo.

And yet, it makes little sense for him to take up a valuable forensic bed at a state hospital that could go to defendants who could actually be helped. And the Travis County Jail, where he's been for the last two years, is not designed to house or treat mentally ill patients long-term. Even if Travis County prosecutors had prevailed at Texas' highest criminal court, the status quo for Mr. Reinke was untenable.

Michelle Mallee, a Travis prosecutor specializing in mental health issues, said "It's just a real horrible Catch-22." Indeed it is, and I don't envy any of the decision-makers in the process. But it's a Catch-22 exacerbated by the fact that our laws view mentally ill people who commit crimes primarily through a prosecutorial lens, from dangerous cases like Reinke who harmed his family to the murderer who committed acts of terrible self-mutilation, but also the homeless schizophrenic drunk cycling in and out of the county jail 50-60 times per year. The definition of insanity in Texas law has little to do with ant clinical definition, but instead amounts to a legal justification for punishment despite insanity if the actor understood what they did was a crime.

Texas needs more state mental hospital beds for long-term inpatient treatment, but not just to accommodate a broken system. Those beds will only be meaningful if they're part of an expansion of lower-intensity supportive housing options, with on-site supervision, care and case management at the most intensive settings and less restrictive, less-intensely supported facilities for those who prove able to operate in that environment. Grits isn't suggesting Texas reconstruct the old apparatus of insane asylums, though in the near term I do think the Legislature should fund enough new inpatient beds to solve the short-term crisis. But Texas cities need long-term supportive housing (at various levels of restriction) and a more flexible controlling legal framework to manage this small but troublesome and extraordinarily expensive group of long-term mentally ill people. After all, even if a judge agrees to civil commitment, the law requires Reinke be placed in the least restrictive environment, so there's no guarantee he'll be locked up, certainly not forever. Without a more flexible array of placement options, calling it a "Catch-22" understates the conundrum.

There's a limit to the effectiveness of punishing the mentally ill without a trial, verdict or sentence, and in Brad Reinke's case the state just reached it.

Snitching here, there and yon

Grits wanted to point out several compelling items related to confidential informants, including issues related to using juveniles as snitches, for readers who don't happen to follow Prof. Alexandra Natapoff's Snitching blog.

Texas bucks national trend on state-level use of wiretaps: Feds do 98% of them

According to The Crime Report, nationally "Wiretap applications were far more likely to go through state courts than federal courts in 2011." In Texas, though, the opposite is true: State judges approved just two wiretaps in Texas in 2011, according to the most recent data reported in the United States Courts 2011 Wiretapping Report: Both were in Travis County involving drug cases. (See here, p. 298, large pdf.) One of the two wiretaps in Travis cost $104,934 and resulted in 14 arrests. Costs for the other, which lasted 30 days, were not reported and no arrests attributed to it.

In contrast, by Grits' count federal judges approved 104 wiretaps in Texas during calendar year 2011, of which 102 were narcotics cases and two related to "corruption." About four in 10 (41) federal wiretaps in Texas resulted in arrests, but several involved dozens of people. The largest, out of Texas' Northern District, resulted in 41 drug convictions. Motions to suppress wiretap evidence succeeded just six times and were denied 16 times.

In all, federal authorities arrested 411 people in Texas in 2011 based on wiretaps resulting in 164 convictions, including 29 arrests and 21 convictions in corruption cases. (Data compiled from these tables, pp. 90-99, large pdf.)

I'm not sure why Texas judges are bucking the national trend of approving more wiretaps than the feds, but by these data the feds in Texas are making up quite a bit of the difference, particularly in the Western District on narcotics cases.

RELATED: Via TDCAA, see "A primer on wiretaps, pen registers and trap and trace devices," which provides a bit of additional process detail regarding state-level wiretaps. "Each of Texas’ nine judicial regions has a designated district court judge authorized to sign interception orders. Statutorily, our ability to seek a wiretap is limited to the offenses of capital murder, murder, child pornography, and felony drug offenses other than possession of marijuana," wrote Fort Bend ADA Jeff Strange in 2009.

'Brady violations' sometimes stem from police misconduct instead of prosecutors

The Dallas Observer this week has its own analysis of prosecutorial misconduct in Texas innocence cases by Leslie Minora titled, "When innocent prisoners finally go free, their prosecutors do, too." As with the Texas Tribune's story today, it focuses mostly on anecdotes of prosecutor misconduct arising from Texas exonerations. Your correspondent was briefly quoted in the story:

"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."

One of the examples mentioned by Minora was Kerry Max Cook, who has not yet been formally exonerated but was unquestionably the victim of prosecutor misconduct. The story quoted from a 1996 Court of Criminal Appeals opinion declaring, "the State's misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State over a 14-year period — from the initial discovery proceedings in 1977 through the first trial in 1978 and continuing with the concealment of misconduct until 1992."

The Observer story also hones in on an underlying issue that's less frequently discussed - police withholding exculpatory evidence not just from the defense but from the prosecution team. "While police give prosecutors a thin file of relevant information, the complete, fat file stays in the department with documents that may be useful" or sometimes, exculpatory.

Prosecutors are obligated to hand over all exculpatory evidence and the courts consider "Brady" material any exculpatory evidence held by any government agent, not just what's in the prosecutor's file. When police fail to hand over exculpatory evidence, it will still be dubbed a "Brady violation" and hence prosecutorial misconduct in court, but in some cases the prosecutor may be unaware the evidence exists. Shannon Edmonds of the Texas District and County Attorneys Association recently told Grits that, according to an internal review, about half of Brady violations stem from prosecutors withholding evidence and the rest from police never giving the information to prosecutors in the first place.

Obviously Grits doesn't believe prosecutors should be sanctioned by the State Bar unless they knowingly withheld evidence. But since they rarely punish prosecutors, the much greater problem is that, even when knowing violations are committed - and even when they're acknowledged by appellate courts as in Kerry Max Cook's case - prosecutors still face no consequences. Edmonds' boss, Rob Kepple, told Minora he thinks the term prosecutorial misconduct is "used too broadly" to include mere mistakes. That may be true in some instances, but from an official perspective, Grits believes the State Bar in particular doesn't apply the term nearly often enough.

Tribune finds prosector misconduct in nearly a quarter of Texas exonerations

Interesting story from Brandi Grissom at the Texas Tribune; from the overview:

The Texas Tribune analyzed 86 overturned convictions [from the National Registry of Exonerations], finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.

Here's a notable tidbit:

Poor training, low-quality certification and high error rates dog police canine units

Via Simple Justice.

A couple of recent stories from out of state have brought drug sniffing dogs back into the news, as the US Supreme Court prepares to consider their use at people's homes without probable cause this fall.

Dog-sniff evidence is problematic because dogs can't be cross examined. There's wide variation in their accuracy, not to mention the quality and quantity of their training. And dogs naturally pay careful attention to cues from their handlers, creating a significant risk of false positives. Since no attorney will ever get a dog on the witness stand, the other elements (accuracy, training, and methods to avoid cues from the handler) have been critical to the creation of probable cause in previous court decisions. Unfortunately, the bar on all those measures is lowering rapidly.

Courts already accept dog "alerts" as a legitimate basis for a search, even when the dog regularly "alerts" where no contraband is found. In this story out of Roanoke Virginia, a dog name Bono found drugs "just 22 times out of 85 'alerts'," or 26% of the time, and yet a judge upheld the search. Arguing that the dog's performance was actually better than the statistics tended to show, prosecutors in Bono's case argued the dog should get credit for some "hits" that found no contraband, claiming that: "In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect." The judge accepted that argument, but even granting such a (highly dubious) premise, Bono's alerts were clearly mistaken half the time, and in another quarter of his hits he's detecting traces that did not actually indicate drugs were present. That fact undermines the US Supreme Court's past rulings (e.g., US v. Place) which upheld dog sniffs in part because they disclose "only the presence or absence of narcotics, a contraband item." In Bono's case, his "hits" mistook the absence of drugs for their presence nearly 3/4 of the time.

Detecting drugs that used to be in the location is  not the same as detecting contraband presently in a suspect's possession. In Texas, Deputy Keith Pikett claimed his dogs could distinguish smells in "scent lineups" up to 17 years after the sample was gathered, so if you take that preposterous claim at face value (as many Texas prosecutors have) heaven knows how long the lingering odor of marijuana might trigger a "hit"? If I buy a car from a pothead and years later a cop runs a drug dog around it, will the dog still signal that marijuana is there? Should that constitute probable cause to search my car today? That's the logic of the Roanoke court.

The judge in Bono's case upheld the dog sniff as probable cause mainly because,  while the dog "may not be a model of canine accuracy," police were justified in acting on it because of the "dog's training and flawless performance during re-certification sessions." Unfortunately, even flawless performance means different things to different agencies.

A case out of Florida which will be argued before the US Supreme Court this fall will determine whether drug-sniffing dogs may be used to glean probable cause outside someone's home without a warrant. The Florida Supreme Court's ruling being challenged by the state made the following argument to say mere certification was insufficient to demonstrate dogs' competence, because:

conditioning and certification programs vary widely in their methods, elements, and tolerances of failure. Consider, for example, the United States Customs Service regime: 

The Customs Service puts its dog and handler teams through a rigorous twelve-week training course, where only half of the canines complete the training. Customs Service dogs are trained to disregard potential distractions such as food, harmless drugs, and residual scents. Agents present distractions during training, and reward the dogs when those diversions are ignored. The teams must complete a certification exam in which the dog and handler must detect marijuana, hashish, heroin, and cocaine in a variety of environments. This exam and the following annual recertifications must be completed perfectly, with no false alerts and no missed drugs. If a dog and handler team erroneously alerts, the team must undergo remedial training. If the team fails again, the team is disbanded, and the dog is permanently relieved from duty.

In contrast, the testimony below disclosed that Razor and his handler had undergone just one initial thirty-day training course and one week-long annual recertification course. In neither course was Razor conditioned to refrain from alerting to residual odors. Whereas the Customs Service will certify only dogs who achieve and maintain a perfect record, Razor's certification program accepted a seventy percent proficiency. These disparities demonstrate that simply characterizing a dog as "trained" and "certified" imparts scant information about what the dog has been conditioned to do or not to do, or how successfully. (Emphasis in original, citations omitted.)

CBS News' 60 Minutes addressed the subject of low-quality training for sniffer dogs in a 2009 story:

"We don't have a set of standards," says Auburn University professor Larry Myers, one of the country's leading experts on canine detection programs.

He believes there is insufficient regulation and no universal tests for the dogs: "We honestly don't have a set curriculum. We've got to get everybody up to some minimal agreed level."

He also says there are good programs that turn out reliable dogs, but some produce dogs that make lots of mistakes -- and even tell lies.

"They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for," says Myers, who adds that canine programs are supposed to train dogs specifically to avoid that problems like that. "It is a tremendous problem. We have trainers that can't train. Dogs are being used that can't --don't know how to do anything."

Do trainers have to be licensed? "In some programs, yes. And in most programs, no," says Myers.

This means that poorly trained dogs and handlers are working in many parts of the country.

Meanwhile, Scott Greenfield at Simple Justice brings word of a drug-dog case from across the country in Nevada that should give everyone pause. Nevada state troopers have sued their superiors, alleging that:

the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.

The dogs were being trained to alert their handlers by cues, instead of by picking up a drug's scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.

Dogs naturally pay very carefully attention to their people. They've been doing so for millenia. In Nevada, troopers are accused of intentionally teaching the dogs to alert based on their cues. Which raises the question: How can any court ever determine whether a dog alerted to the smell of drugs, an intentional or unintentional cue from their handler, or for that matter the package steaks recently purchased by the suspect? As pointed out in a recent article from the National Association of Criminal Defense Lawyers' trade journal:

Dogs are not motivated in the same way as humans. Dogs have no interest in ridding the world of illegal drugs. Dog trainers, including police K-9 trainers, use treats, toys and praise to reward dogs when they do what they have been conditioned to do. If a police K-9 alerts, it gets a reward. K-9 handler/trainers know this, and the dogs quickly learn that an alert results in a reward in most instances, even if nothing is found. 

Even if such cues are not intentional, the fact is that dogs seek to please their handler raises questions of inherent bias, particularly when the dog's "hit rate" is as low as Bono's above. As the NACDL article pointed out, "If law enforcement or magistrate judges, who are presumed to be impartial, were to be similarly incentivized, it would constitute violations of the Fourth, Fifth and Fourteenth Amendments." To the dog, after all, it's all just a game in which they want to find reason to alert in order to get a reward. To law enforcement and those targeted, though, it's not a game at all, even if federal jurisprudence on the subject has been mostly a joke.

Private prison news: Inmate deaths, contractor changes, and are private jailers 'destined for destruction'?

A few items related to private prisons caught my eye recently that may interest Grits readers:

Antibiotics allegedly delayed in pneumonia death
The Dawson State Jail saw its eighth death since 2004, reported the Dallas CBS affiliate (via Texas Prison Bidness). "Her family says Ashleigh [Parks] had pneumonia and they believe her death could have been prevented if she had simply gotten antibiotics sooner.  Their suspicions are based, in part, on letters they received from inmates at Dawson."

State changing treatment contractors
Meanwhile, TDCJ is changing contractors for drug treatment services at at least four state facilities from Community Education Centers to an entity called Gateway Foundation Inc., reported the Corpus Christi Caller Times. "The contract change affects 116 CEC positions at four prison units: Glossbrenner, the Halbert Unit in Burnet, the Kyle Correctional Center near Austin and the Sayle Unit near Breckenridge." CEC got the contract in 2009, so one wonders why the state felt the need to change contractors so soon. Gateway Foundation's website lists six other Texas facilities where they provide treatment services.

Geo Group wrongly took prisoner off suicide watch, lawsuit alleged
Also via Texas Prison Bidness, according to the SA Express News, "Relatives of an inmate who hanged himself at the privately run Central Texas Detention Facility [in downtown San Antonio] have sued Florida-based The GEO Group and its warden, alleging the federal prisoner was able to kill himself because he was wrongly taken off suicide watch in December 2011.

Analyst: Private prison companies "destined for destruction"
The Motley Fool asked, "Did the prison bubble just burst?," which is a question Grits has been pondering for more than a year. Wrote Justin Loiseau,  "a critical look at the failings and financial fudging of these corporations reveals several reasons why this sector is destined for destruction." Read why.

Courts as revenue centers: Mounting probation and court fees

The New York Times today has a front-page story titled, "Poor land in jail as companies add huge fees for probation," and the story mentioned a couple of recent studies that focused in part on Texas' situation regarding probation and court fees:

• Brennan Center for Justice: Criminal Justice Debt: A Barrier to Reentry (2010), and
• Conference of State Court Administrators: Courts Are Not Revenue Centers (2012)

Does rise of feminism explain decline of child-sex abuse?

Two high-profile sex-abuse prosecutions out of Pennsylvania - of former Penn State football coach Jerry Sandusky and a Catholic official, Msgr. William Lynn who shielded perverted priests from accountability - have generated a minor media frenzy over the past few months. But the New York Times reported last week (June 28) that:

if the convictions of Mr. Sandusky and Monsignor Lynn represent a success story, the furor surrounding them tends to obscure what may be an even more significant achievement, albeit one that receives little publicity: The rates of child sexual abuse in the United States, while still significant and troubling, have been decreasing steadily over the last two decades by several critical measures.

Overall cases of child sexual abuse fell more than 60 percent from 1992 to 2010, according to David Finkelhor, a leading expert on sexual abuse who, with a colleague, Lisa Jones, has tracked the trend. The evidence for this decline comes from a variety of indicators, including national surveys of child abuse and crime victimization, crime statistics compiled by the F.B.I., analyses of data from the National Data Archive on Child Abuse and Neglect and annual surveys of grade school students in Minnesota, all pointing in the same direction.

From 1990 to 2010, for example, substantiated cases of sexual abuse dropped from 23 per 10,000 children under 18 to 8.6 per 10,000, a 62 percent decrease, with a 3 percent drop from 2009 to 2010, according to the researchers’ analysis of government data. The Minnesota Student Survey charted a 29 percent decline in reports of sexual abuse by an adult who was not a family member from 1992 to 2010 and a 28 percent drop in reports of sexual abuse by a family member. The majority of sexual abuse cases involve family members or acquaintances rather than strangers, studies have found.

At the same time, the willingness of children to report sexual abuse has increased. In a 2008 survey, Dr. Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, found that in 50 percent of sexual abuse cases, the child’s victimization had been reported to an authority, compared with 25 percent in 1992.

Remarkably, though, some advocates have been slow to accept the data, clinging to the mumpsimus of an ever growing child sex abuse epidemic:

Mark Chaffin, a professor in the department of pediatrics at the University of Oklahoma Health Sciences Center, had one possible explanation for why it was hard for some people to accept the numbers. “The child abuse field has always been one that felt like there was not enough public policy attention, so the narrative reflected that. It’s at crisis proportions; it’s getting worse every year; it’s an epidemic,” he said. “So when people hear that the rates are going down, it really is sort of a challenge.” 

Lucy Berliner, director of the Harborview Center for Sexual Assault and Traumatic Stress in Seattle, notes that many child advocacy groups depend on government financing, and good news always brings mixed feelings. One of them is the fear that if the issue does not seem dire enough, the money might dry up.

“It is very risky to suggest that the problem you’re involved with has gotten smaller,” she said.

Yet she and others in the field have embraced the decline as evidence that their work has made a difference.

“What we’ve arrived at is celebrating the success and using that to argue that the investments that government has made have been very worthwhile,” Ms. Berliner said.

When good news brings "mixed feelings," it's a sign one's goals have become muddied. While it's understandable for advocates to claim their efforts are responsible for this remarkable reduction, particularly when that meme helps secure public funds, Grits finds it curious that child sex abuse rates declined seemingly in tandem with crime rates generally, even as reporting rates for this particular offense ostensibly doubled.. Some of the reduction, certainly, stems from longer prison sentences and harsher punishments for child molesters pushed for by such advocates. But as with the large declines in other crimes, there's more going on.

Some of it may stem from much more public attention to the issue: Hollywood and TV have made an archetype of the abused-child-become-broken-adult. And revulsion toward scandals in the Catholic church beginning in the late 1980s could have created something of a tipping point in public awareness and parental vigilance. But IMO it would be a mistake to attribute too much to media influence, just as I don't think long prison sentences explain it all.

Indeed, Grits suspects a major cultural shift unmentioned by the Times may account for much of the decline: The rise of the women's rights movement in the 1970s and the resulting transformation of American family life. While cases like Sandusky and Lynn get most of the headlines, in reality the overwhelming majority of child-sex abuse occurs in the home, which to me indicates it's being stopped in the home. Though this hypothesis is pure speculation, perhaps a major difference stems from women embracing and living out their hard-won equality, not just in the workforce but in the home.

Women today are marrying at older ages: In 1980, the average age at which US women first married was the same as in 1890 (22), with steady increases since then. In 2010, the average age of women entering their first marriage was 26. Meanwhile, women enter parenthood today with more education under their belts (most mothers of newborns (54%) had at least some college education in 2006, an increase from 41% in 1990). So first-time mothers in the 21st century arguably enter that phase of their life with more maturity and self-confidence that better enables them to defend themselves and their progeny.

Perhaps just as important (though certainly, just as speculative), many more women are having children out of wedlock, frequently without the father's involvement. Whereas women once had to climb a mountain of societal disapproval to stop an abusing husband, today she can throw the bum out with both personal and official support. Being able to leave the jerk who threatens your kids rather than feeling obligated to co-habitate could have a big preventive effect, eliminating opportunities for abuse on the front end. Though the growing number of single mothers is oft lamented, this could be an unacknowledged upside to the trend.

Grits suspects such large reductions in child abuse signal these sort of deeper cultural changes as much or more than the success of any specific anti-crime policies.

Justified and unjustified killings, south-bound spillover, the old mumpsimus, and other stories

Here are a few odds and ends that merit Grits readers attention:

Killings deemed justified rise after passage of Castle Doctrine
Homicides considered justified ticked up after Texas approved its version of the "stand your ground" law.

Wrongful death suit over Arlington ATF raid
An Arlington man's family has sued after he was was shot and killed by an ATF agent in his home at 6:30 in the morning while he was preparing school lunches for his grandkids. They were executing a warrant targeting his son, a member of the Texas Syndicate prison gang.

Texas Legislature has most lawyers of any statehouse
At 30.4%, the Texas legislature has a larger percentage of attorneys than any other state legislature.

Nueces performs pre-July 4 breath tests on DWI probationers
In Nueces County, police and probation officers will be visiting the homes of DWI probationers Tuesday and Wednesday to perform breath tests prior to the July 4 holiday. Said the police chief, "If we need to put them in jail for a technical violation to keep an eye on them, we will."

We're all safer now
In East Texas, a man was given a 12 year sentence for possession of just more than 4 oz of codeine cough syrup.

Prosecuting spillover violence
Regular Grits readers know most "spillover violence" along the Texas-Mexico border runs north to south, with Texas prison gangs operating as soldiers on behalf of Mexican drug cartels. The feds just extradited another member of Barrio Azteca, a prison gang affiliated with La Linea in Juarez, who was one of 35 BA members charged last year, including 10 accused in the Mexican-side murder of a US Consulate employee, her husband, and the husband of a co-worker in 2010.

On 'vanishingly rare' criminal trials
Scott Greenfield at Simple Justice opined on the implications of "vanishingly rare" criminal trials, reacting to this New York Times story on Supreme Court jurisprudence.

The old mumpsimus
Yesterday's Dictionary.com "word of the day" was "mumpsimus," which means "Adherence to or persistence in an erroneous use of language, memorization, practice, belief, etc., out of habit or obstinacy." It dates to a story first told by Erasmus of a monk who mistakenly used "mumpsimus" instead of the correct "sumpsimus" in his latinate litany. When confronted with the actual verbiage, the monk replied that he'd said it that way for forty years and “I will not change my old mumpsimus for your new sumpsimus” How could Grits not have known this excellent word? It describes a phenomenon this blog rails against all the time, and Erasmus' "In Praise of Folly" is one of my all-time favorite satirical works.

Harris County indigent defense costs up 142% over last decade, but case filings starting to drop

An email from the Texas Criminal Justice Coalition last week alerted Grits to an interesting memo (pdf) from Jim Bethke of the Texas Indigent Defense Commission to a legislative staffer regarding the Harris County Public Defender Office (PDO). Bethke emphasized that there's a more formal and in-depth evaluation of the PDO coming from the Council of State Governments' Justice Center, but offered a preliminary analysis in response to the staffer's questions.

Perhaps most startling, check out the numbers on cost increases for indigent defense spending over the last decade in Harris County:



That's a whopping 142% total increase in indigent defense costs over the last decade, though it's interesting that the total declined slightly in 2011. Bethke suggests that decline "may be the result of greater emphasis placed on the functionality of the criminal justice system," including "alternative dispositions" and "taking greater care in case filings." But the more likely cause is a recent reduction in the total number of new cases filed:



Curtailing costs was a big reason why Harris County created its public defender office, though it's probably too early to judge its impact on that front. Importantly, though, the memo emphasized that cost isn't the only factor to consider regarding the value of indigent defense but also quality, portraying the new PDO as an alternative to "a meet-and-plead style of practice":

Realizing that attorneys’ high workloads can impede delivery of quality representation, the PDO has implemented workload standards that are consistent with national recommendations in an effort to safeguard defendants’ constitutional rights. Under these workload standards, attorneys are expected to meet promptly with clients and keep them informed of the case, conduct an investigation into the facts of a case, file appropriate motions, and ensure that defendants are informed and aware of the collateral effects of any plea. These performance guidelines were adopted by the State Bar of Texas and are now published as the Performance Guidelines for Non­Capital Criminal Defense Representation (State Bar of Texas 2011), which was adopted by the PDO as part of its own employee evaluation.

If attorneys carry a heavy caseload – perhaps one that allows only two hours per client – they may not be able to meet the guidelines established by the State Bar which prevent a meet-and-plead style of practice. Instead, tangible time and effort must be put into each case. Attorneys must meet with the client to conduct an interview regarding the facts of the case. They must also prepare a defense strategy, file appropriate motions, and conduct necessary discovery. Further, attorneys must inquire about the mental health needs of the defendant and determine if any mitigating factors are present. They may also need to have investigators go to the scene of the alleged crime and contact witnesses. Finally, if the defendant chooses to plead to the case, it must be done knowingly, with the defendant informed about the collateral consequences of the plea.

Go here for a discussion of the performance guidelines mentioned by Bethke. Anyone with a particular interest in the Harris PDO will want to read the full memo (pdf).