FISA court gave NSA authority to monitor local phone call data

Just because you're paranoid doesn't mean no one's out to get you, the old saying goes, and despite commenters recently accusing Grits of paranoia and "tin-foil hat" thinking vis a vis electronic privacy, headlines like this one today from the Guardian (UK) - "NSA collecting phone records from millions of Verizon customers daily" - seem to confirm some healthy skepticism is in order. The story opened:

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (FISA) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

The disclosure is likely to reignite longstanding debates in the US over the proper extent of the government's domestic spying powers.

Remarkably, the order (see here) included "all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." So no content, but basically the header information from the phones of both parties. Still, local phone calls, too? Wow. Talk about a Big Data Bonanza! Perhaps Grits hasn't been paranoid enough.

MORE: From Orin Kerr at the Volokh Conspiracy. AND MORE: See a followup from the Guardian and related coverage from the Washington Post. By one account, the NSA gathers information in this fashion from more than 50 companies. ALSO: AP has an excellent Q&A parsing the scope of the NSA phone-data order.

POSTSCRIPT: According to the bevy of followup reporting on this yesterday, data from this order was going into a massive database of Americans' phone calls that the feds began compiling seven years ago. In the coming days and weeks there will be many calls for this program to be discontinued. Grits considers it critical that those political efforts also focus on demands that the database itself be destroyed.

Livingston, Owens get fat pay hikes far exceeding their employees

The Austin Statesman reported last evening that Brad Livingston, executive director of the Texas Department of Criminal Justice, received a whopping $73,000 raise in the most recently approved state budget - nearly a 40% increase. He will now make $260K. Also, "Board of Pardons and Paroles Chairwoman Rissie Owens’ salary will jump from $126,500 to $172,000," for a 36% increase. See the rest of the story for more examples of agency executives receiving fat pay hikes far beyond those received by their employees, but these two criminal-justice examples are among the most eye-popping. My question is "Why?" Brad and Rissie a) aren't likely to go anywhere and b) aren't irreplaceable if they do. Why increase their salaries by more than a third? Who gets those kind of raises in this economy? I hadn't tracked the budget process closely during session so Grits didn't realize this was happening. Indeed, I'm not sure very many people did in the entire state. Bad optics.

Drug cases dropped from misconduct, and other stories

A few, disparate items that caught my eye:

J. Salvador fiasco impacts first case beyond Galveston
The Texas Court of Criminal Appeals has granted relief (pdf) for the first time in one of the Jonathon Salvador drug cases originating outside Galveston, where the District Attorney has been facilitating them most quickly. Not only that, in this case out of Harris County, unlike in Galveston, the DA's office attempted to contest the findings on behalf of the defendant but were rebuffed both by the trial court and now the CCA, which used the same boilerplate language they used to grant 18 prior cases. By Grits' count, the 19 cases overturned so far have totaled 151.5 years, for an average of eight years per case. There could easily be thousands of cases overturned based on this one lab analyst's misconduct by the time we're done. UPDATE: See more from the Houston Chronicle.

Deja vu on drug task force misconduct
As many as 75 drug cases may be dismissed in Hidalgo County because of recent misconduct charges against key members of their multi-agency drug task force. Multi-county task forces were put under DPS supervision in 2005 and those have all closed up shop rather than comply with more strict DPS policies than their loosey-goosey, oversight-free status had afforded them. But some counties simply scaled back to multi-agency drug task forces among agencies in the same county - which are not regulated by DPS - and those continue to crop up as sources of corruption and ineptitude.

Understaffing and jail suicides
See a must-read piece by Michael Barajas at the SA Current titled "Dead in Seven Hours: When overdosed meets overworked, Bexar County Jail's fatal flaws come to light."

Texas groups excoriate 5th Circuit judge over recent speech
Judge Edith Jones of the Fifth Circuit Court of Appeals has drawn a formal complaint from a variety of organizations in response to a recent, public exhibition of foot and mouth disease, reported the Austin Chronicle. Read the whole thing, a brief summary can't do it justice. See also more from the Texas Tribune, and a blog post from Paul Kennedy.

Private prison news
Several good, interesting posts over at Texas Prison Bidness if you haven't visited recently.

More media on warrants-for-email
The warrants for email legislation continues to get good coverage. There was a nice item from KVUE in Austin. See others here, here, and here. And prior press roundups. (Whether readers are sick of it or not, I need to keep tabs on the press it gets.)

Youth crime reductions leading recent crime drops
The latest drop in crime nationally is being led by a substantial reduction in youth crime, found the Research and Evaluation Center at the John Jay College of Justice in New York. Grits readers, of course, are aware of my own favorite theory why that's the case: Young people spend a great deal of time engaged with technology like the internet, video games and cell phones that didn't exist 25 years ago. These activities occupy time of teens and young adults who are the most likely to commit crimes. The kid perfecting his skills at Grand Theft Auto V may not be preparing himself for the job market, but he isn't out stealing my car. There's even some formal research to back up that notion. Obviously, though, there are many factors contributing to 21st century crime reductions.

DOJ: 3 Texas prison units, Harris Jail have among highest sexual victimization rates

Three Texas prison units and one jail (the largest) ranked among correctional facilities where inmates are most likely to be sexually victimized by either other inmates or correctional staff, according to a new report by the US Department of Justice (pdf, see the chart on page 12). Reportedly 6.3% of Harris county Jail inmates are sexually victimized, according to DOJ's offender survey. The percentages were 6.8%, 7.8% and 8.4% at Stiles, Clements and the Montford psychiatric unit, respectively (with a 95% confidence rate, see the report for details and limitations on their methodology, etc.).

Another interesting aspect: Extrapolating from national data on Table 8, p. 18 (these are all survey-based estimates), the number of heterosexual victimizations perpetrated by staff more than doubled the number of times that inmates were victimized by other inmates in same-sex assaults, with an estimated 27,258 heterosexual incidents by staff compared to 13,603 same-sex inmate-on-inmate incidents. Heterosexual inmates are more likely to be victimized by staff. Gay inmates are more likely to be victimized by other inmates.

Report: 'Understanding and Addressing Youth Violence in the Texas Juvenile Justice Department'

Got a note today from the UT-Austin LBJ School's Michele Deitch announcing the publication of her latest report, "Understanding and Addressing Youth Violence in the Texas Juvenile Justice Department."  Find her email summarizing its findings below the jump:

Reflecting on the 83rd Texas Legislature's criminal justice record: Blow by Blow

The 83rd Texas Legislature overall had a good session on criminal-justice issues, said Rick Casey at the SA Express News, and in large part Grits would have to agree. There were also a few setbacks, however. Let's take a look at both.

Innocence: Discovery and junk science reform

Photo via the SA Express-News

Casey praised passage of the new open-file statute dubbed the "Michael Morton Act" and SB 1238 by Hinojosa expanding the jurisdiction of the Forensic Science Commission, both of which were undoubtedly big improvements. But they're not the only ones.

Prosecutors will receive more training on Brady issues, and the Lege passed SB 825 by Whitmire would disallow the state bar from issuing private reprimands to prosecutors who withhold exculpatory evidence from the defense. SB 1292 would require DNA testing of all biological evidence gathered in death penalty cases.

Another important bill headed to the Governor is SB 344 by Whitmire clarifying standards for relief for habeas corpus claims in junk science cases. This has been a long time coming and just in time, too, as more and more such cases have been reaching the Court of Criminal Appeals over the last several years. Slowly but surely the Lege is plowing through the recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions. With the passage of SB 344, they've now approved five of the six major legislative recommendations made by that group. Requiring police to record custodial interrogations is the big one yet to go.

On the flip side, the Legislature sent SB 12 by Huffman to the Governor eviscerating Rules 404 and 405 of the rules of evidence in child molestation cases, a bill Grits has opposed in years past. This was sort of an anti-innocence bill, making it easier to convict people who aren't guilty of the offense for which a grand jury indicted them. The House version couldn't get out of the Criminal Jurisprudence committee so Rep. Debbie Riddle asked for the senate bill to be assigned to her "select" committee on criminal procedure reform, which waived it on through. Given this episode, Grits worries what that house panel - which was assigned the Herculean task  of rewriting the Code of Criminal Procedure - will end up recommending headed into next session. Seems like an ill omen.

The Lege also restored money cut in 2011 from innocence clinic budgets at Texas' four public law schools. The Senate and even a conference committee working group recommended increasing that amount to $150K per year, but House Appropriations Chairman Jim Pitts vetoed it at the last moment. Legislation to allow dependents of exonerees to receive health insurance under their policies stalled out in the Calendars Committee.

Fusion Center funding restored
Not every outcome was positive. Despite earlier reports that the House budget eliminated funding for DPS' fusion center, most of the money was reinstated under the general heading of "intelligence" in the conference committee and the fusion center will continue to operate, reported the Austin Statesman. Too bad, I consider that thing redundant and nearly worthless for assisting day-to-day law enforcement functions.

CO, trooper raises of different magnitude
Correctional Officer pay at TDCJ will increase 10% over the next biennium. But every other law enforcement agency in the state got a whopping 20%, so guards are still grumbling. Since the amount taken out of their paychecks for retirement will also increase, the actual raise COs will see this fall will come in around 1%, according to the union. By contrast, for troopers "When coupled with an existing program that allows DPS troopers to earn overtime for working an extra hour a day, the cumulative increase in pay could total as much as 35 percent," reported the Austin Statesman. Grits can't immediately tell if troopers will take the same ding as COs on their retirement contributions.

Prison closures timid but welcome
Grits couldn't be more pleased that the Lege doubled down on prison closures this year instead of succumbing to the pleas of special interests to keep open facilities TDCJ doesn't need. I'd like to have seen at least one more unit closed - preferably one with chronic understaffing - but this was a good Step Two after the landmark closure of the Central Unit last session. If they'd let just a few key de-incarceration reforms though they could close quite a few more, which brings us to ...

De-incarceration bills mostly stifled
The Lege this year sent only two bills to the Governor aimed at de-incarceration: HB 1790 creating incentives (through reduced charges) for state jail probationers to succeed on community supervision, and SB 484 incentivizing new prostitution diversion programming in larger cities. Right now there are several hundred women locked up on prostitution charges so the latter is a small change but potentially significant for the women's units.

Lots of good bills that would have reduced incarceration costs died in the House Calendars Committee, which this year seemed utterly uninterested in letting members vote on criminal-justice reform bills that didn't involve Michael Morton. The Lege did pass SB 1003 authorizing a review and report on overuse of solitary confinement, perhaps presaging issues that will be taken up more seriously in the 84th session.

Probation: A missed opportunity
Probation saw a slight bump in programming funding and perhaps more importantly for probation directors, the Lege agreed to pick up their budget busting healthcare tab, which I'm told will relieve a lot of end-of-the-year budget pressure. Here's where the failure to close another prison becomes an issue: The Legislature basically used the money from prison closures to pay for CO raises. If they'd closed one more unit, they could also have afforded to significantly increase funding for successful probation programming. A missed opportunity.

Modest reentry improvements
A few notable achievements on reentry,  including a bill sent to the governor reducing civil liability for employers who hire ex-prisoners. Another by Whitmire would take employers off the online sex offender registry. Those two bills perhaps reflect the influence of the Texas Association of Business, which supported both. SB 1185 by Huffman authorizes a mental health diversion project in Harris County.

New enhancement critics on House committee
In recent years a predictable pattern had arisen in which the House Criminal Jurisprudence would pump out dozens of enhancements and then Chairman John Whitmire would stop most of them in their tracks in the Senate Criminal Justice Committee. This year the Criminal Jurisprudence Committee was much more reluctant to increase penalties, which was a welcome change of pace. The big exception was an enhancement for leaving the scene of an accident causing death, legislation pumped up by the high-profile Gabrielle Nestande case in which a jury gave probation and six months in jail to a Republican legislative staffer who left the scene of an accident after killing a pedestrian. As with the Michael Morton case, seemingly any legislation associated with that episode took on a note of inevitability this session.

So often, law is driven for good or ill by singularly compelling stories, which is why enhancements are considered "easy" bills to pass in typical sessions: Describe a bad outcome and propose new crimes or penalty increases as the solution: X is bad. Punish X more. The formula lends itself to incorporating sympathetic anecdotes in the same way that innocence bills inherently do. At least this session the Criminal Jurisprudence Committee was somewhat more immune to that dynamic, though obviously not completely.

Grits' Nominations coverage a death knell
I never planned it this way but in each of the last three sessions, this blog has directly contributed to the Senate's rejection of at least one Governor's nominee: Shanda Perkins for the parole board in 2009, John Bradley at the Forensic Science Commission in 2011, and this year, it was Annette Raggette for the Texas Board of Criminal Justice. This brief Grits blog post alerted the Senate Nominations Committee to conflicts of interest by TDCJ board nominee Annettee Raggette, the sister-in-law and former business partner of TDCJ board chair Oliver Bell, whose nomination was withdrawn within a week. Truly the Governor's office and the Senate Nominations Committee need to do a better job vetting these candidates. The Raggette imbroglio should have been spotted and stopped long before her name was posted for consideration on the Nominations Committee agenda. That it wasn't tells you no one involved in the vetting process ever Googled her name.

And something for us bill readers
One bill stands out above all as likely to make Grits' blogging tasks easier next session: HB 1271 by Martinez-Fischer which would require the Legislative Council to provide links in the online text of proposed legislation to other state laws referenced in the bill on the capitol website. I can't tell you how much easier that will make it to vet legislation when bill filing season begins for the 84th session.

That's the big stuff aside from privacy issues, which apparently some of y'all are sick of reading about. Much more good than bad, overall, though with the cooperation of the House Calendars Committee much more could have been done. See also the Texas Criminal Justice Coalition's list of successful legislation they supported this session. (Strong hint: I'd love to see the Texas Public Policy Foundation's Center for Effective Justice put out a similar list.) Let me know in the comments what other criminal justice legislation you were following that Grits failed to mention.

How to corrupt a prison guard

From the Houston Chronicle's Dane Schiller, see an interesting post detailing how members of the Raza Unida prison gang allegedly wormed their way in with a Texas prison guard. This is one of thirteen guards "charged last February [in] a corruption scheme that involved 32 people, including the guard, some civilians and some inmates."

Does this count as a 'drone'? If cell-phone towers can fly, why not a 'Stingray'?

Via Ars Technica

Does a flying cell-phone tower count as a drone? You decide. The bill Texas just passed that's awaiting a decision by Gov. Perry would regulate images captured by "unmanned aircraft." And under that statute, " 'image' means any capturing of sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions existing on or about real property in this state or an individual located on that property." So arguably this use would be illegal under Texas' bill. Should it be? Grits is not so sure. I'm less concerned with cell-phone companies using drones this way than, say, if law enforcement were to install a Stingray device on an unmanned aircraft. The latter should be outright banned. The former may be perfectly appropriate in a regulated environment and could be a tremendous boon to rural areas with poor cell-phone coverage.

Grits believes there are a vast number of potential uses for "drones," far more than most people, and certainly most Texas legislators, have properly considered. The Texas bill's principle saving grace is that, even if Gov. Perry signs it into law, it'll be a couple of years before the Federal Aviation Administration allows civilian drones in commercial airspace. So Texas will get another chance to get it right in 2015.

MORE: From EFF: How we need to regulate drones.

Related:

• National expert laments Texas' drone bill
• Top Five Things Wrong With Texas' Drone Bill
• A path forward for state drone regulation

How many cases besides Winfrey hinged on bogus dog-scent lineups? Forensic commission should check

In an article also appearing in the New York Times, the Texas Tribune's Brandi Grissom has a feature today about Megan Winfrey, whose conviction was finally overturned by the Texas Court of Criminal Appeals in February because of junk science (dog-scent lineups) used to convict her. Winfrey is not eligible for compensation, Grissom pointed out, because her case was not overturned on formal "actual innocence" grounds, so her only recourse after spending seven years in prison based on the junkiest of junk science would be to sue. Her brother, who was charged and acquitted in the same case but in the meantime spent 2.5 years in jail, has already done so.

If Governor Perry signs SB 1238 expanding the jurisdiction of the Forensic Science Commission to take up investigations for "educational purposes," IMO these old scent lineup cases deserve a closer review by that body. Nobody knows for sure in how many nor in which cases Fort Bend County Sheriff's Deputy Keith Pikett performed these bogus rituals, nor how often he testified in court. The FSC would be performing a great mitzvah by investigating once and for all just how deep that rabbit hole goes. Maybe it's just a few cases where Pikett provided the primary evidence; maybe it's dozens or hundreds. There's no way to know unless someone systematically investigates, which has never been done.

On the Winfrey case, see also the majority opinion by Judge Cathy Cochran overturning Winfrey's conviction and a dissent by Presiding Judge Sharon Keller, as well as prior Grits posts on the Winfrey case and dog-sniff lineups generally:

Texas blows opportunity to lead nation on cell-phone privacy

Damn it! Along with the rest of the Texas Electronic Privacy Coalition, I'd hoped this would be Texas: From the May 30th Maine Sunday Telegram, "Maine cellphone-privacy law is America's first." Their story opened:

Maine's Legislature is poised to become the first in the nation to enact a law requiring police to obtain warrants to get the location history for people's cellphones.

The House voted 113-28 on Wednesday to pass the measure, following its passage in the Senate last week by a margin of five votes. The bill now goes back to the Senate for enactment.

Apparently, though, it's not completely a done deal. Ryan Gallagher at Slate reported that:

For the Maine legislation, there’s just one more challenge ahead. While the Senate has already voted in support of the bill, 20-15, local news reports have speculated that unless the legislature can find funding for LD 415’s fiscal note of almost $234,000 during the next two years, final enactment could fall through.

The lopsided margin of support in the Maine House of Representatives reminded me of the dynamic on our cell-phone location legislation here in Texas. Notably, the vote in the Texas House in favor of an amendment to require warrants for cell-phone location data won by a phenomenal 126-4 margin. But the authors of the bill it was attached to, Rep. John Frullo and Sen. John Carona, killed it with a procedural maneuver and sent a version to the Governor without requiring warrants for cell-phone location data, though we did of course get first-in-the-nation amendment tacked on to require warrants for cloud-based email and other stored communications.

Congrats to the advocates and legislators in Maine who pulled this off and I hope the funding comes through. With a little luck, perhaps in 2015 Texas will follow your lead. Would have been awfully sweet to get that this session, though. We came darn close. To my mind, the warrants-for-email bill is a nice but insufficient consolation prize compared to what Maine has accomplished.

Texas sentences for 17-year old murderers fine as they are: No need for special session call

So far, Gov. Perry has resisted adding anything to the special session call besides redistricting and Grits' must admit I'm grateful. Unless he surprises me and put warrants for cell-phone location data on the list (which he should), not much good can come of any of the criminal-justice topics the Governor is most likely to add to a special session which some, like Lt. Gov. Dewhurst, would like to fill with right-wing red meat.

One surprising omission so far has been the failure of the 83rd Legislature to establish a legal punishment for 17-year old capital offenders. Texas treats them as adults but the US Supreme Court considers them juveniles. So SCOTUS rulings banning the death penalty and life without parole (LWOP) for juveniles have left Texas with no legal punishments on the books for 17-year olds charged with capital murder. They can still be charged with "regular" murder, which could get them a sentence of up to 99-life, but with the eventual possibility of parole.

Grits doesn't consider that an especially unfair sentencing range and sees no pressing need to change it, but from the prosecutors' rhetoric you'd think the end of the world is nigh. Some thought the issue was pressing enough to call a special session back in 2012, and in years past one would have expected anything from the DA's must-have wish list to immediately make a special-session call. But as we've discussed earlier this session, prosecutors' clout at the Texas Lege has lessened and they don't automatically get what they want anymore, though in this case I'll be surprised if the Governor ignores their demands completely.

During the regular session there are hundreds of bills to monitor on a zillion different topics and every lobby interest must make cost-benefit analyses regarding where they spend their time. Likely for that reason, nobody really focused much on SB 187 besides the prosecutors who brought it to Sen. Huffman. The bill responded to the Supreme Court's Miller v. Alabama ruling by giving juries a choice when sentencing 17-year old capital murderers: life without parole or life with the possibility of parole. No other options. It died for time of its own accord thanks to the House leadership's annoying habit this session of slow walking bills through the process.

But that means, in a special session, if it's added to the call then criminal-justice reformers can pay more focused attention and perhaps improve the bill from its earlier form, or preferably kill it. At Defending People, Mark Bennett recently laid out the core shortcoming of Sen. Huffman's solution to this "problem" as articulated in SB 187: It arguably doesn't comply with the Supreme Court's ruling in Miller v. Alabama which, as Bennett said did not simply mandate the possibility of parole but"the oppor­tu­nity for the sen­tenc­ing author­ity to con­sider mit­i­gat­ing cir­cum­stances." That sentencing goal is better served by prosecuting 17-year olds (and for that matter 14-16 year olds) under "regular" murder statutes.

By contrast, wrote Bennett, "Huffman’s bill would replace life with­out parole in the capital-murder sen­tenc­ing statute with mur­der life (with the pos­si­bil­ity of parole after forty years). What she is try­ing to take off the table is the jury’s dis­cre­tion to take into account mit­i­gat­ing cir­cum­stances and sen­tence a child mur­derer to less than life."

Criminal-justice reformers should oppose adding another version of SB 187 to the "call." The law handles these cases just fine as it stands and Texas prosecutors simply need to adjust to the new reality. If the issue is added, though, someone besides Huffman should propose an alternative solution: to eliminate "capital" murder for 14-16 year olds to comply with the discretion demanded by Miller in their sentencing. Bennett's interpretation of Miller is utterly mainstream and yet was barely articulated as SB 187 meandered through the process. That should change if the Lege takes the issue up again during the special session.

National tech press loves Stickland email legislation: Will it become law?

After Ars Technica published a widely read piece calling the bill "unprecedented" and the National Journal followed up, several more news stories have come out regarding legislation now pending before the Governor, HB 2268, which includes an amendment by Rep. Jonathon Stickland to require warrants for government to access cloud-based email. See earlier Grits coverage and these recent stories:

• Austin Business Journal: Texas email privacy bill turns heads
• Computer World: In Texas, cops will soon need a warrant to read your email 
• Government Technology: Will Texas pass nation's strongest email privacy bill?
• RT.com: Texas could set new standard on email privacy laws
• Fierce Homeland Security: Texas legislature passes bill requiring warrants for email searches
• Mashable: Texas police may soon need warrants to read emails
• Daily Tech: Texas seeks to become first state with strong email privacy protections
• Law360: Texas email privacy bill could prod states, feds 

Jonathon Tilove at the Austin Statesman linked to the Ars and National Journal stories but besides that, surprisingly the Austin Business Journal is the only Texas media outlet to cover the bill's passage, much less mention that Texas would be the first state to install a warrant requirement for cloud-based email. My theory is that reporters don't want to have to say anything nice about the author of the email amendment, Jonathon Stickland, who's become a bit of a whipping boy in the liberal press and authored a bill aimed at gutting government subsidies to newspapers. Free from such biases, the national tech press (rightly) consider it landmark legislation.

During session, Grits had considered the warrants-for-email bill a bit of a consolation prize. Location data was where government put up a real fight, probably because the tool is used much more often. Location data is an investigative shortcut; reading reams of old email is a slog, so investigators do it a lot less often. Plus, the law-enforcement lobby really didn't want to stand up in public and say the cops should be able to read your personal email without a warrant. Even those registering opposition to HB 3164 at the committee hearing merely "put in a card." Nobody wanted to speak publicly against it, much less answer questions from legislators on the topic.

Several reporters have asked if I think Rick Perry will veto the bill. While having no direct knowledge, Grits tends to doubt it. For starters, the warrant-requirement was amended to prosecutor-friendly legislation that the DAs actually want. Plus, the bill has gotten loads of positive national press, many of the stories plastered with Perry's picture. It sets Texas apart from the Obama Administration which has a terrible record on this topic. Mr. Stickland gives it a fine, grassroots conservative Tea Party imprimatur. And since the Lege didn't do much for ideological conservatives this year, this is something to sell. Meanwhile, vetoing it would open the governor up to criticism from grassroots conservatives in a potential primary fight with Greg Abbott, John Cornyn, or (God help us) another presidential run. Finally, it's the right thing to do and Perry's record on criminal justice reform topics isn't half bad, though the Fourth Amendment has been a weak spot. I just don't see a reason he would pick this bill out of the pile to veto and many reasons for him to let it become law.

One thing's for sure: We'll know by Father's Day.

RELATED: Federalism, search warrants and cloud-based email: Correcting a false meme

Anonymous, Texas, and other stories

Here are a few odds and ends that could and perhaps should have made it into independent posts but wound up in this roundup instead at the end of a busy week:

'FBI scrutinizes Dallas DA'
The headline from the Wall Street Journal says it all. Their story for now is on the free portion of their site. And the Dallas News reported that District Judge Bob Brotherton will decide next week whether to dismiss the pending contempt ruling against Dallas DA Craig Watkins stemming from the same episode that drew the FBI's attention. Wrote reporter Jennifer Emily, "If Brotherton does not dismiss the contempt case, a date will be set for a hearing to determine whether the charge should be upheld." If John Creuzot wasn't all in for the 2014 Democratic primary already, there's certainly no excuse now for not jumping in with both feet. Run, Judge, run!

Snitching works both ways
The Texas Observer has the story of an Hidalgo County Sheriff's deputy wearing a wire to uncover a major South Texas corruption scandal. The mantra of the allegedly corrupt cop at the center of the scandal gives insight into the corrupting influence of asset forfeiture: “We don’t arrest them. We take their shit." Meanwhile, in Fort Worth a police officer allegedly tipped off crooks before police raids, demonstrating that the use of human intelligence can work in both directions.

Anonymous, Texas
Now that Texas' warrants-for-email bill has hit the national press, several folks who work on electronic privacy issues nationally have reached out to Grits and one of them asked my opinion of the Barrett Brown case. "Who is Barrett Brown?," I sheepishly replied. If that was your reaction, here's a sympathetic but detailed account. See more from Vice, the New York Times and The Guardian. Sounds like he's not really a central Anonymous hacker and is mostly being prosecuted for being a punk (chiefly the case stems from a You Tube threat against law enforcement). Given that that's the one thing of which Mr. Brown appears to be actually guilty, my guess is he'll get the max.

Accuracy of historical location data
During the legislative fight over HB 1608, law enforcement claimed that historical location data from a personal cell-phone was relatively inaccurate compared to real-time pinging and they shouldn't have to demonstrate probable cause to obtain it. That argument was mooted in large part by the example, shown in the House committee hearing, of Malte Spitz, a German politician who obtained his historic cell-location data for six months and teamed up with a newspaper to graphically map it. Then, the same week the bill was heard, new research was published showing that even a few location data points reveal a lot about an individual. The ABA Journal has an article detailing the flip side of that argument, calling prosecutors' use of historical location data as evidence "junk science." Cops can't have it both ways: Either historic location data is accurate enough to use as evidence or it's so inaccurate that it shouldn't require a warrant. Right now it seems law enforcement is making one argument at the Legislature and quite different ones in court.

Which two prison units will Texas close?
The Legislature left the decision to the Texas Department of Criminal Justice, but the odds on favorite prison units most likely to be closed are still the ones Sen. Whitmire wanted: the Dawson State Jail and a unit in Mineral Wells, both run by Corrections Corporation of America. There could be other sensible choices, though. The Connally unit comes to mind (they can't even secure adequate water there, much less staff), or Dalhart, which has been perennially understaffed. Or if you wanted to base things on cost per prisoner, they might look at closing some of the units coming up on a century old or more, some of which have higher per-prisoner costs than units with modern designs. The easiest, though, would be Dawson and Mineral Wells. Both are on contracts that are about to expire so the close-out costs would be less than for any other option. There are many incentives for the TDCJ board to comply with the wishes of the Senate Criminal Justice Chairman. For example, the Lege reduced TDCJ's budget precisely by the amount it cost to run those two units! My money is on those two to remain the frontrunners, though we won't know for sure until TDCJ meets again to decide.

Javert in Waco

California voters recently changed that state's three-strikes law so that the final strike can't be a petty offense. Perhaps something similar is needed in Texas if stealing $35 worth of meat from the grocery store can secure a 50 year sentence from a Waco jury because of so-called "enhancements." The fellow had five prior felonies so he's not quite Jean Valjean, even if the McLennan DA continues to perform his best Javert impression.

National expert laments Texas drone bill

Though I hate to say it, if I were Governor Perry, Grits would veto HB 912 - the "drone bill" - and request in the veto message that the Lt. Governor and Speaker of the House appoint a joint, select committee to develop better legislation in the interim. Indeed, make me philosopher king and I'd hire Margot Kaminski to figure out how to reasonably govern this technology at the state level, and not just because I enjoy her company more than Lance Gooden's staff. (Kidding guys!) Grits met Margot at the Yale Law School conference I attended earlier this year and she's thought longer and more deeply about these questions than anybody I've met involved with Texas' drone bill. In a tweet lamenting the passage of HB 912 she recommended this recent paper championing "drone federalism" as an explanation for "why this kind of bill threatens free expression and is not a good idea." Like Margot, I think there's a role for state-level drone regulation. This bill, regrettably, isn't up to snuff.

RELATED: See Grits' critique, "Top Five Things Wrong With Texas' Drone Bill."

Federalism, search warrants, and cloud-based email: Correcting a false meme

There's a meme spreading in national coverage of Texas' legislation requiring warrants for email that needs quashing. At the National Journal, Brian Fung wrote that, "The Texas bill can't override ECPA [the Electronic Communications Privacy Act]; it can only change the way the state deals with lower-level cases. But it would set a high-profile example." Then, Cory Doctorow at Boing Boing wrote that, "The Texas law is somewhat symbolic (since it won't stop Fed snooping), but it's still an important step toward establishing a better norm in privacy standards for files on cloud-based services."

The idea that this bill is "symbolic" or only applies in "lower-level cases" couldn't be further from the truth. Grits replied thusly to Doctorow in the comments:

No, no no! Not symbolic at all! The overwhelming number of prosecutions including for the most serious cases like murder, sexual assault, child abuse, etc., all take place in STATE courts. The new warrant requirement applies in all those cases, which means it applies in most criminal cases in Texas, by a longshot. Ask your friends at EFF-Austin about it, they were part of the Texas Electronic Privacy Coalition that promulgated and helped pass the bill. States get to establish their own rules of criminal procedure with SCOTUS rulings and federal law as a floor, so the law headed to Perry covers every state and local cop in Texas, which means peace officers at more than 2,600 agencies.

Let's be clear: Texas and other states get to set their own search-warrant standards as long as they don't go below floors set by the US Supreme Court. Beyond that, federal criminal procedure applies to federal agents - the FBI, DHS, etc.. It doesn't necessarily govern how states handle criminal cases in their own jurisdictions. In this case, however, Texas law currently incorporates the ECPA statute by reference. What the Stickland amendment to HB 2268 did was to delete the sections of Texas' statute that incorporated ECPA, instead insisting that a warrant will always be required for state and local government to access cloud-based email, no matter how old, and whether opened, unopened, or in draft form.

Texas law doesn't apply to the FBI or other federal agencies operating here, but it does apply to state and local cops from the Texas Rangers to the lowliest two-man PD, every county sheriff, and Texas state agencies. In 2011, there were 256,664 felony cases processed in Texas state district courts according to the Office of Court Administrate (see here, p. 8 - add appointed and retained counsel totals).

By contrast, in the fiscal year ending August 2012, federal courts processed 94,121 cases nationwide, with just a fraction of them in Texas (see here, subtract civil cases from the total). In fact, in Texas the feds have been doing fewer traditional criminal cases because the Southern and Western Districts in particular have been overwhelmed with immigration cases, a situation exacerbated by the US Senate's inexplicable delays approving judicial appointments.

All this to say, the warrants for email legislation would apply in the overwhelming majority of criminal investigations in Texas, including in the most "serious" cases. The hundreds of people on Texas death row, for example, all got there via Texas state courts. The bill is not "symbolic," nor does it only apply to minor cases. It's an expression of federalism - the laboratory of the states - and it would be virtually a snub to his beloved Tenth Amendment for Gov. Perry to veto it.

Bench slap: SCOTUS says Texas capital habeas process could 'create significant unfairness'

Grits doesn't usually follow death-penalty topics but I can never resist a good bench slapping, particularly when SCOTUS decides to show the back of its hand to our friends on the Texas Court of Criminal Appeals, who rival the federal 9th Circuit as a favorite US Supreme Court whipping boy. (N.b., SCOTUS was technically rebuffing the Fifth Circuit for approving Texas' methods; see the correction below.)

This week, SCOTUSBlog has the story of another US Supreme Court bench slapping of the Texas Court of Criminal Appeals Fifth Circuit Court of Appeals in Trevino vs. Thaler, which ruled that Texas' bifurcated death penalty review procedure - where direct appeals and habeas corpus process occur simultaneously - “makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.” The Texas system, said the majority, "would create significant unfairness." SCOTUSBlog said the case is "Texas- (and capital-) specific." For judges, that's the equivalent of a student being singled out in class for low marks and being ordered to "shape up!" Again.

From the New York Times report you would think the dissenters objected on grammatical or perhaps laundry-related grounds. "In dissent, Chief Justice Roberts said the Martinez decision had announced a 'crisp limit.' 'But today,' he added, 'the court takes all the starch out of its rule with an assortment of adjectives, adverbs and modifying clauses.' Chief Justice Roberts had voted with the majority in Martinez, as had Justice Alito, who joined the chief justice’s dissent Tuesday."

The SCOTUS  majority essentially accused the Texas Court of Criminal Appeals Fifth Circuit of sophistry, opining that “a distinction between (1) a State that denies permission to raise [a] claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” Ouch!

CORRECTION: In the comments, Rob Owen, who has forgotten more about death penalty litigation than I will ever know, pointed out that the Supreme Court was technically rebuffing the Fifth Circuit for approving Texas' system, so it was them receiving the bench slap, not the CCA. Grits regrets the error. The decision, however, does indict the Texas system specifically and singularly and will require the CCA to alter its methods for handling ineffective assistance claims in some fashion..

43% of House bills voted out of committee never heard on floor

Grits lamented previously that a great deal of Texas' criminal-justice reform agenda died this year in the House Calendars Committee (a procedural committee that schedules bills for floor votes, or doesn't) and apparently those bills weren't alone. The full Texas House of Representatives approved just 57% of legislation voted out of committee this session, according to data from the Legislative Reference Library. Bills that made it out of committee in the Senate had a 90% chance of passing out of that chamber.

It wasn't that the House was voting down bills, for the most part, the difference was by design. Often during the heart of the session, particularly during the crucial month of April, the lower chamber would hear excruciatingly short floor calendars as hundreds of bills backed up  in the Calendars Committee. By the time the deadlines rolled around, Grits wondered why they were still bothering to hold committee meetings. There were more bills backed up in Calendars already than could possibly be heard in the homestretch in May.

Much of this was about the establishment Rs and the Dems aiming to control the Tea Party contingent, which appears ready to embrace more aggressive criminal-justice reforms than their more moderate Republican predecessors. But that can't go on forever. "Do nothing unless you have to" can't be a long-term strategy for governance, even if it appeared to be the mantra of this year's House leadership. Those guys were elected too, in the districts the centrist Rs drew for them two years ago, no less. Sooner or later you've got to let them vote on bills.

Texas first state to require warrants for old email if bill survives veto period

Very nice story from Cyrus Farivar from Ars Technica about state Rep. Jon Stickland's email bill which was amended on to legislation currently headed to the governor. The article, titled "Unprecedented email privacy bill sent to Texas Governor's desk" (May 28), concluded thusly:

“Privacy is a special thing in Texas—it goes to the core values of Texas,” Chris Soghoian, a senior policy analyst at the American Civil Liberties Union, told Ars.

“It's always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts to see that this is a safe space to venture into. When cities and states start protecting e-mail, then judges may feel like there is a reasonable expectation of privacy.”

Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, agreed.

“It is the first state legislature I'm aware of to change the law this way,” he also told Ars. “Other states are currently considering similar legislation, including California—where EFF sponsored SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly.”

“It's significant as proof that privacy reform is not only needed, but also politically-feasible with broad bipartisan support. And hopefully that will impact federal ECPA reform efforts by getting people on both of sides of the political aisle to work together to make meaningful electronic privacy reform a reality. The more states that pass similar legislation, the more pressure it will put on Congress to keep up with the changing legal landscape.”

I couldn't be more proud of the Texas Electronic Privacy Coalition, an alliance of state and local groups powered mostly by volunteers who brought Rep. Stickland the bill and helped promote it. And it should be mentioned that while Jon Stickland's reputation may be taking a beating among the capitol cognoscenti, this legislation was a significant achievement for a freshman. He was bold to file it and bolder still to amend it to a passing bill when the filed version got gummed up in the process. In my book he deserves a lot of credit for that.

MORE: From National Journal. AND MORE: From Popular Science.

Studying how to whittle away at solitary, prison suicides

Eric Dexheimer at the Austin Statesman has a pair of stories related to solitary confinement, one of which ("Do prisons need so many inmates in maximum custody," May 25) begins,

While all prison systems typically have some form of administrative segregation, Texas relies on its maximum custody status more than others. Direct comparisons are difficult; however, the most recent national count, in 2005, showed 2.7 percent of state inmates were on administrative segregation. Although the number in Texas prisons has been dropping slowly since 2006, the percentage here has been about 5.5 percent.

Last week, largely in response to concerns raised by mental health advocates, legislators ordered a detailed analysis of Texas’s use of administrative segregation, including recommendations on reducing its use and the amount of time offenders stay. “Very little is known about conditions in administrative segregation and how these conditions affect its population,” said state Sen. John Carona, R-Dallas, the bill’s author.

Several state prison systems recently have begun dramatically reducing their use of isolation. In some cases, the reforms were compelled by court order; in others, they were self-initiated.

Economics is one reason. As state prison systems struggle to meet budgets, they are taking a harder look at expensive programs such as administrative segregation, which can be double the cost of regular prison units. (A Texas corrections spokesman said the state doesn’t break out costs by custody level.)

Public safety is another. Many maximum security residents — about 900 in Texas last year — complete their sentences in isolation and are released directly back into civilian life without re-acclimation or supervision. A 2007 study of similar inmates in Washington state found they had “significantly higher felony recidivism rates” and committed new crimes sooner than other offenders.

Depending on the study's results, perhaps Texas in 2015 can follow the lead of other states described in the story: "In recent years, Ohio has dropped its administrative segregation population from 800 to 90. Mississippi reduced its from 1,300 to about 300, whittling the percentage of total inmates held in maximum custody from more than 5 percent to 1.4 percent."

Another piece, "Texas prison suicide rate high among inmates in isolation" (May 25) revealed the disturbing fact that though just more than 5% of Texas prison inmates are in solitary at any given time, their number make up to 40% of prison suicides. I had no idea it was that disproportionate. Reported Dexheimer:

Most Texans are unlikely to shed many tears over criminals who decide to end their own lives, particularly those convicted of serious offenses. Yet deaths like [Casey] Myers’ raise questions about how well the state is attending to its duty to care for its inmates.

The deaths also add to the debate over confining mentally ill inmates for long periods in relative isolation. About a quarter of Texas inmates held in administrative segregation have a diagnosis of mental illness or mental retardation.

That isn’t dramatically disproportionate from the overall prison population. Yet experts say evidence suggests that, more than in the general population, prolonged periods of isolation can worsen psychiatric symptoms in some and initiate them in others. Of the 56 Texas inmates who killed themselves in administrative segregation cells between 2007 and 2012, 28 — exactly half — had a mental health diagnosis.

With luck, the passage of SB 1003 by Carona will give us a lot more Texas-specific data and detail about these questions. That's the idea, anyway.

TCJC list of reform bills approved by 83rd Texas Lege

The Texas Criminal Justice Coalition sent out an email this morning detailing reform legislation they supported which passed in the 83rd session. There is a surprising number of juvenile justice bills on the roster but a lamentably short list of bills aimed at reducing incarceration in the adult system.

Wiretapping bill dead mainly because Dallas cop was a jerk

Image via Emergent Chaos

The bill Grits put the most effort into killing this session was SB 188 by Huffman (and its companion, HB 530 by Fletcher) expanding authority of local PDs in big cities to engage in wiretapping. It was a bad bill but no one opposed it in the Senate. And Grits probably wouldn't have stuck my nose into the fray if it weren't for the untoward behavior of one of the bill's most prominent backers.

The two main proponents of the wiretap expansion bill - Det. Jimmy Taylor from the Houston PD and Frederick Frazier from the Dallas Police Association - were also the individuals most prominently opposing HB 1608 by Bryan Hughes requiring warrants to obtain cell-phone location data. Det. Frazier had been particularly hostile and abusive toward Rep. Hughes' poor, unsuspecting staffer assigned to the bill, who'd never before been on the business end of such vitriolic police tirades. ("Welcome to my world," I told her.) One day I came into the office and she was on the phone with Frazier holding the receiver a foot away from her ear with an aggrieved look on her face as he screamed into the line. I could hear him halfway across the room.

Grits is not a fan of such bullying behavior, particularly when it's aimed at a well-intentioned twentysomething staffer from my hometown who's working her butt off for my bill! So in retaliation, I authored an op ed against his wiretap expansion bill in the Houston Chronicle and shared it with the House Criminal Jurisprudence Committee staff, submitted written testimony against the bill at the public hearing on the House side, and visited with committee members' offices behind the scenes to scuttle Frazier's pet legislation. To be sure, members of that committee weren't hard to convince and perhaps the bill would have perished anyway, but there was no other public opposition. By the time I made the rounds after the hearing I could count at least six (out of nine) votes against it. Despite a 30-1 vote in the Senate (and btw, kudos to Craig Estes for opposing it), the bill never made it out of committee on the House side.

My purpose was not just to kill a bad bill, which is always a plus, but also to send a message to Mr. Frazier and his ilk: Next time be more polite, pick on somebody your own size, and if you decide to launch an all-out war against reform bills you dislike, keep in mind that strategy may come back to bite you on your own legislation. It did on SB 188.

Texas closing email loophole, requiring warrant for old content: Feds should follow suit

At the federal level in the wake of the IRS and AP surveillance scandals, we're increasingly seeing headlines like this latest one from Wired declaring, "[Eric] Holder Should Demand Feds Get a Warrant to Read Our Email." The nation at large is becoming aware of something Grits readers have known for some time: Under federal law - which Texas statutes currently incorporate by reference - law enforcement doesn't need a warrant to look at emails stored with a third party like Gmail or Yahoo! once they're older than 180 days. (Quick question: What's the oldest email stored on your own personal system?)

Given this nascent national debate, Grits is pleased to report that the Texas Legislature has sent a bill to Governor Rick Perry, HB 2268, that in its amended form requires a warrant for law enforcement to access old emails, closing the loophole at least for state and local law enforcement in Texas. Federal agents can still access your old emails under the 1986 Electronic Communications Privacy Act, though Congress is (again) considering updating that law. But barring an unexpected veto (the bill amended was a prosecutor-friendly measure the governor is unlikely to oppose), Texas will be ahead of the curve on the email front. Perhaps Texas' new warrant requirement will even contribute momentum toward passing similar federal legislation.

Congratulations to freshman state Rep. Jon Stickland whose HB 3164 served as the template for his amendment to HB 2268, which would ban the sort of snooping into old emails that Congress, the US Justice Department and the courts have inexplicably allowed at the federal level. The Texas Electronic Privacy Coalition brought the bill after Stickland and a couple of other legislators specifically requested it. Ever since the Petraeus scandal, privacy-inclined folks have become increasingly aware of the vulnerability of email stored with third parties and legislators who were aware of the issue needed little priming. To my knowledge, though, Texas will be the first state to specifically address the subject through legislation.

Naturally, I'm disappointed that an amendment to the senate companion of the same bill requiring a warrant for police to access historic cell-phone location data didn't make it onto the version that finally went to the Governor. But requiring warrants for older emails is a nice get. And most of the 126 House members who voted for Bryan Hughes' cell-phone privacy amendment will be back again in 2015 when we can take another shot at it.

RELATED: See Grits' coverage from when Stickland's bill was filed and when it was amended onto HB 2268, as well as an op-ed I authored on the bill's behalf in the Dallas News.

Lege slowly but surely plowing through Tim Cole Advisory Panel recommendations

One has to give the Texas Legislature credit where it's due.

The Timothy Cole Advisory Panel on Wrongful Convictions was a one-time task force charged with making recommendations to reduce false convictions in the wake of the posthumous exoneration of Tim Cole as well as dozens of other Texas men declared innocent of serious felonies after post-conviction DNA testing. See their report (pdf). One often hears that panel made eleven recommendations, but really it was fewer than that. For example, five of them related to eyewitness identification standards, all of which were addressed in just one bill. Consolidated, the group effectively proposed six different legislative solutions:

• Eyewitness ID reform
• Recording custodial interrogations
• Discovery reform
• Expand access to post-conviction DNA testing
• Clarify standard for adjudicating junk-science habeas claims
• Fund staff at law-school innocence clinics instead of an innocence commission

Remarkably, with the passage of discovery reform and Sen. Whitmire's legislation allowing habeas relief in junk-science cases, after this session, to its credit, the Texas Legislature will have approved five of the six major recommendations of the Tim Cole Advisory Panel. Some may have been in more watered down forms than Grits might have preferred but still, that's not a bad record.

Assuming Governor Perry approves these latest bills - and he's been supportive of past legislation based on Tim Cole Advisory Panel recommendations - the final major unresolved item from the list for next session will be requiring police to record interrogations in the most serious offenses. This year a bill to that effect was voted out of the House Criminal Jurisprudence Committee but, like a great deal of criminal-justice reform legislation, never received a vote on the House floor. The police chiefs' association says smaller departments can't afford it and until now my response has been that if they can't afford a recording device the department isn't big enough to handle rape and murder investigations. But that argument hasn't moved the needle so next session I've got my eye on a pot of untapped money that could perhaps be used for one-time recording equipment purchases, in much the same way the state used bond money to pay for dashcams in local police cars back in 2001. Recording equipment is cheap these days, it wouldn't take much.

Still, considering the Legislature created the Tim Cole Advisory Panel in 2009 (the same year it increased compensation for exonerees to become the most generous in the nation) and this is only the second session since its recommendations came out, five out of six isn't a bad ratio. There's more to be done, no doubt, and these measures represent modest first steps toward reform, not its culmination. But to outline half a dozen significant legislative suggestions and see five of them enacted in just two sessions is pretty darn impressive.

Forensic commission gets increased budget, expanded jurisdiction; innocence clinic funding restored

At the Texas Tribune, Brandi Grissom has an update on SB 1238 by Hinojosa expanding the jurisdiction of the Texas Forensic Science Commission and brings the welcome news that the FSC's expanded jurisdiction will also come with a larger budget. (Your correspondent is briefly quoted in the story.) IMO the FSC has exceeded any and all expectations I ever had for them and deserves to be rewarded both with the increased authority and funding.

Grits should also mention that the new budget reinstated funding cut during the 82nd Legislature for innocence clinics at Texas' four public law schools - UT-Austin, Texas Tech, the University of Houston, and Texas Southern - which will see their budgets increased to $100,000 per year. In 2011 the clinics took a 20% cut, which the 2013 budget reinstated. This year, the Senate had recommended (largely thanks to Senators Hinojosa and Whitmire) not only restoring those funds but increasing the clinics' budgets in order to accommodate the volume of intake they receive and their growing participation in larger scale projects like Texas' arson review. Regrettably, though the conference committee working group on criminal-justice had recommended going with the higher Senate figure, House Appropriations Chairman Jim Pitts axed the extra funding when he and Senate Finance Chairman Tommy Williams met for a final budget markup. That was a disappointment. Still, the boost back to 2009 levels is a welcome respite for the clinics at a time when more than ever is expected of them.

In the scheme of the Texas budget these are tiny amounts but they're significant for both the FSC and the clinics, expanding their capacity to fulfill their respective, reform-minded missions.

Former Cameron DA convicted of bribery

Reported the Houston Chronicle ("Former DA convicted in corruption trial," May 24), "A jury on Friday night found former Cameron County District Attorney Armando R. Villalobos guilty on all but two corruption charges after two weeks of testimony that he took bribes to influence cases before him." The case is part of a broader ongoing corruption prosecution in South Texas.:

Villalobos, who took the stand in his own defense, was charged in a wide-ranging corruption scheme in Cameron County that has resulted in guilty pleas by eight people, including former state Rep. Jose Santiago “Jim” Solis as well as [former state District Judge Abel] Limas.

Former Austin attorney Marc Rosenthal and Port Isabel attorney Ray Marchan were convicted by juries of extortion and racketeering. Marchan took his life when he jumped from the Queen Isabella Causeway in Port Isabel earlier this year on the same day he was to report to prison.

One notices it took the feds stepping in to hold a local DA criminally liable. State-level accountability mechanisms from the state bar to the court system as a general rule aren't up to the task.

Prosecutors dissing the Michael Morton Act, and defending it

At the Texas District and County Attorney Association's user forum, see 24th judicial district ADA Terry Breen's embittered critique ofTexas' new mandatory open file policy for prosecutors - he's mad that he may have to give up incriminating as well as exculpatory evidence - followed by a quite reasoned response from forum regular Greg Gilleland which explains in essence why TDCAA supported a "one-sided" open file bill. Steamed Breen, "This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that 'all the stakeholders,' (i.e. including you and me) is even more galling." Gilleland responded:

I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file. ...

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.

And so on. The whole thing is worth a read.  The Governor has already signed the "Michael Morton Act" so Mr. Breen is crying over spilled milk. Come January 1, 2014 it will be the law of the land.

RELATED: From the SA Express-News, "Bill requires new ethics training for prosecutors."

House amendment on cell-phone location data could get bypassed

Well privacy fans, I hope you enjoyed that pyrrhic victory while it lasted! On Monday, the Texas House of Representatives amended a Senate bill to require law enforcement to get a warrant (with limited emergency and other exceptions) to access detailed cell-phone location data about subscribers, information that some agencies like the Texas Department of Insurance currently get with only a subpoena. For a moment, hope abandoned was rediscovered and the world shined brighter.

Then yesterday the Texas Senate passed the House companion to that bill, HB 2268, without the language about warrants for cell-phone location data, though it includes Rep. Jonathon Stickland's language from HB 3164 regarding warrants for cloud-based email stored longer than 180 days. It's now up to the bill authors - Rep. John Frullo and Sen. John Carona - to decide with which version of the bill they'll move forward. Both have expressed hostility toward the amendment by Rep. Bryan Hughes even though Frullo was a co-author of Hughes' original HB 1608. The House rejected Frullo's motion to table Hughes' amendment by a whopping 126-4 margin

Still possible but time is dwindling and prospects look bleak. The House will vote tomorrow morning whether to concur in the Senate amendments to HB 2268 or to send it to conference committee. Whether the House will go that far I don't know but support for the amendment on warrants for cell-phone location data was strong. See below the jump an image forwarded by an alert reader of the House vote board passing Hughes' amendment to SB 1052 on Monday. The vote was on a "motion to table" so a red "no" vote was a vote in favor of the amendment. The handful of green lights represent votes against it.

UPDATE/LAMENT: SB 1052 along with its House amendments is officially, formally, finally dead as the House on Friday concurred with the Senate amendments to its companion HB 2268 which did not include the language requiring warrants for cell-phone location data. It did, however, include a version of Rep. Jon Stickland's HB 3164 requiring warrants for law-enforcement to access old emails held by third-party service providers like Yahoo! or Google. But though it had a good run, Texas' legislation on cell-phone location data is dead for the year unless the Governor decides to add it to the "call" for a special session, a move that might make him popular with the GOP base if perhaps not with the Dallas police union.

Man bites dog: DAs support reduced drug sentences, but not in Texas

The headline sounded like news from an alternative universe but appears to be (mostly) legit: The Oregon District Attorneys Association came out in support of reducing drug sentences "as a way of curbing the growth of state prisons." Their main concession on drug sentencing was to issue a report (pdf) agreeing that penny-ante pot dealers shouldn't get automatic prison time. The Association agreed with 11 of 18 recommendations by a Governor's task force (see their report [pdf]), but balked at otherwise-consensus suggestions to eliminate certain mandatory minimums, including for some violent offenses. Notably, the main report recommended a more aggressive reduction of current drug and property-offense levels than the Oregon DAs were willing to concede.

It should be mentioned that Oregon operates under a sentencing guideline regimen that's quite different from Texas' sentencing approach. But the two states are united in a desire by their legislatures to limit prison spending growth, which is why the DAs Association made these concessions.

We've seen Texas judges plead with the Legislature to reduce sentencing categories for low-level drug possession but it's hard to imagine our current crop of DAs doing so. OTOH, TDCAA surprised me this session by coming forward with a one-sided open-file discovery deal at a time when the criminal defense bar had walked away from the negotiating table. And some of their more hard-line representatives at the Lege have softened a tad in intensity, for reasons discussed here and here.  Certainly we didn't hear the sort of weeping and gnashing of teeth over closing two prison units (if it sticks, bringing the total shuttered to three) that one would have expected back when, say, Chuck Rosenthal, Bill Hill and John Bradley were at the zenith of their power. Perhaps one day Texas prosecutors will surprise me again and follow the lead of their Oregon brethren on drug sentencing. As TDCAA's Shannon Edmonds replied when I emailed him the link and suggested as much, "Stranger things have happened."

Nuther overturned case based on Jonathan Salvador crime lab fiasco

After a brief hiatus in which several weekly "hand-down lists" came and went without the Texas Court of Criminal Appeals ruling on any more of former DPS crime-lab worker Jonathan Salvador's cases, another one came down yesterday. In "Ex Parte James Antonio Williams," a six year sentence was overturned because evidence in the defendant's case passed through Salvador's seemingly tainted custody. Admittedly Grits has been distracted so I may have missed some, but by my count that brings the total to 18 convictions overturned totaling 141.5 years worth of prison sentences so far as a result of the scandal, with potentially thousands more to come. I'd begun to wonder whether Texas' high criminal court may reconsider its sweeping rejection of all things Salvador after the breathtaking implications of its rulings became apparent. After all, the Houston-based chemist worked on nearly 5,000 cases. But Mr. Williams received relief based on the same standard as prior cases. It all looks like a mess from here but ironically we've got Yankees marveling that Texas has handled it as well as it has. Go figure.