Taking judicial notice of Miley Cyrus' twerking: Texas online solicitation statute ruled unconstitutional

Paging Mark Bennett: You were right; the prosecutors were wrong.

In a surprising decision - both for its unanimous outcome and the unlikely reference to Miley Cyrus "twerking" in a Texas judicial opinion - the Court of Criminal Appeals today declared Texas Penal Code §33.021(b), criminalizing online solicitation of a minor, "facially unconstitutional" in a habeas corpus writ styled Ex Parte John Christopher Lo. See their unanimous opinion (pdf) written by Judge Cathy Cochran which ruled that the statute is "overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse." Bennett had earlier opined:

it is my opin­ion that this statute vio­lates the First Amend­ment by crim­i­nal­iz­ing pro­tected com­mu­ni­ca­tions between adults.

There is no require­ment that the per­son on the other end of the line be a child, or even that the actor believe the per­son on the other end of the line to be a child. So the statute crim­i­nal­izes dirty talk between adults if one of them is pre­tend­ing to be a child — even if the other one knows that the other is just pretending.

Because it reaches con­sti­tu­tion­ally pro­tected speech (for exam­ple, sex­u­ally explicit com­mu­ni­ca­tion between two grown-ups play­ing “naughty teenager” on the inter­net — both could be pros­e­cuted), the Online Solic­i­ta­tion of a Minor statute is over­broad and unconstitutional.

The CCA unanimously agreed, finding that, unlike statutes in other states, Texas' law "prohibits and punishes speech based on its content." The legislation was supposedly crafted to cover those who "engage in conversations over the Internet with the intent of meeting a minor for sexual activities." But the court found that the statute as written "punishes, as a third-degree felony, salacious speech over the internet (but not "dirty talk" spoken face-to-face) and the distribution of sexually explicit materials over the internet (but not the distribution of those same materials hand-to-hand) to a minor as long as the actor has the intent to arounse or gratify anyone's sexual desires. It does not require that the actor ever have any intent to meet the minor for any reason."

The court opined that the overbroad statute would criminalize many common, even historically important artistic works, not to mention ubiquitous images of Miley Cyrus "twerking":

Subsection (b) covers a whole cornucopia of "titillating talk" or "dirty talk." but it also includes sexually explicit literature such as "Lolita," "50 Shades of Grey," "Lady Chatterly's Lover," and Shakespeare's "Troilus and Cressida." It includes sexually explicit television shows, movies, and performances such as "The Tudors," "Rome," "Eyes Wide Shut," "Basic Instinct," Janet Jackson's "Wardrobe Malfunction" during the 2004 Super Bowl, and Miley Cyrus' "twerking" during the 2013 MTV Video Music Awards." It includes sexually explicit art such as "The Rape of the Sabine Women," "Venus De Milo," "the Naked Maja," or Japaneses Shunga. Communications and materials that, in some manner, "relate to" sexual conduct comprise much of the art, literature and entertainment of the world from the time of the Greek myths extolling Zeus's sexual prowess, through the ribald plays of the Renaissance, to today's Hollywood movies and cable TV shows.

The Court did find that there is a "compelling state interest" in prohibiting online solicitation of minors but that the law as written is "not narrowly drawn." Bottom line, said the court, "everything that Section 33.021(b) prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected." (Emphasis in original.)

Strong stuff. For once, instead of bucking US Supreme Court opinions, the CCA simply applied them and reached a conclusion that closely tracks federal First Amendment case law. Kudos to the court for not dodging the issue.

MORE: See coverage from the Austin Statesman, the Houston Chronicle, and the Volokh Conspiracy.

AND MORE: Mark Bennett, the attorney who argued the case before the CCA, now has two blog posts up about it:

• Part of online solicitation of a minor statute unconstitutional
• What happens next?

FOLLOWUP: What happens to people convicted under now-unconstitutional online solicitation statute?

Are we on the verge of a Fourth Amendment revival?

Former Williamson County DA John Bradley has been keeping a low profile since voters ousted him from office last year, at least everywhere but the Texas District and County Attorney Association user forums where he remains a prolific contributor. I may often disagree with him, but Bradley's a smart guy and last week he posed an interesting question that merits Grits readers attention:

When SCOTUS decided the Jones case and said placing a GPS device on a car was a search, the Court did not decide whether a warrant was required. Texas law has not required a warrant. But here is one federal court that has said a warrant is required:

Details.

Given the SCOTUS requirement for a warrant in the McNeely blood draw case, is the national trend toward requiring warrants?

He could have added the example of the Texas Legislature becoming the first state to require a warrant for law enforcement to access cloud-based emails. Moreover, legislation with 107 joint and co-authors in the Texas House, which received 126 votes as an amendment on the House floor, would have required warrants both to place GPS devices on vehicles as well as to access people's cell-phone location data if procedural machinations hadn't kept the amendment off the final bill. (Maine and Montana passed similar legislation this year.) Also, Texas' new law regulating drones requires law enforcement to secure warrants to use them for investigative purposes, even tacking on a powerful exclusionary rule if drones are used without them.

I think JB's right that we're witnessing a "national trend toward requiring warrants" and, moreover, Texas has been a leader in that trend as it regards electronic privacy issues. The Fourth Amendment has been so battered in recent decades by judicial-manufactured exceptions that significant factions in both political parties are beginning to endorse its revival through the legislative process. Hell, it's one of the few issues that seems capable of drawing bipartisan support even in Washington, D.C..

Perhaps that's just false hope and/or wishful thinking on my part, but clearly Grits isn't the only one observing these changing trends. IMO there's a window opening over the next few years during which the opportunity to bolster the Fourth Amendment will re-assert itself. The question will be whether judges, politicians and advocates can discover the courage and wherewithal to seize the moment.

On the dubious constitutionality of DPS roadblocks

The Austin Statesman has more on roadblocks conducted in the Rio Grande Valley last month by the Texas Department of Public Safety and the possibility that courts could find them unconstitutional ("Follow up: Could DPS checkpoints face legal challenge?" Oct. 29). Courts have ruled that roadblocks are acceptable to check for drivers licenses and to verify insurance but unconstitutional for general crime fighting purposes (see prior Grits coverage here and here). Here's a notable excerpt from the Statesman story:

The checkpoints were part of an initiative dubbed "Operation Strong Safety," aimed squarely at the question of border insecurity.

"Combating criminal activity in the RGV was the primary goal of Operation Strong Safety, as well as taking back the border from the ruthless thugs operating in that area," DPS Director Steven McCraw said in an Oct. 24 release. The operation also included round-the-clock patrols that were "sustained until the cartels were forced to curtail their drug and human smuggling operations in the targeted area."

Yet the checkpoints apparently were not meant to be part of that particular effort,  but rather were aimed at curbing "unsafe driving practices," according to the agency. Before the operation was launched, DPS said the checkpoints were conducted to improve roadway safety.

But an American-Statesman analysis this month found that the locations where DPS set up the roadblocks were far less dangerous than other parts of the state. Rates of fatal crashes in Hidalgo and Cameron counties lagged well behind other metro areas. Based on crashes per vehicle mile traveled, a statistic commonly used to calculate safety rates, the Rio Grande Valley trails far behind cities like Lubbock, Laredo, Houston and Midland, and has crash rates comparable to Central Texas and the Dallas area.

DPS also pointed to high numbers of uninsured and unlicensed drivers as a reason for concentrating the stops in the area. But according to the Texas Department of Insurance, Dallas, San Antonio and Houston all have significantly higher numbers of uninsured drivers than Hidalgo and Cameron counties.

Jeremy Schwartz's story reacts to a DPS press release that explicitly framed the roadblocks in terms of a broader effort in the Valley to crack down on drug cartels. To me, this is further evidence that DPS is using the checkpoints to combat general criminal activity, not only for driver-license and insurance checks. As Grits wrote when the story first came out.

These are pure "pretext stops." McCraw's first justification given for the checkpoints was a response to "various criminal activity"; the rest are excuses, not reasons. The 2011 Texas case he cites overturned a lower court opinion out of El Paso forbidding the tactic. They upheld the checkpoint even though drug-sniffing dogs were deployed to check every car.

So basically, Texas law enforcement may use license and insurance checks as a fig leaf to justify a tactic that, in my youth, was associated in the public discourse mainly with totalitarian Communist states. Growing up, I can well remember my attorney father associating this practice with Communist Russia ("Show me your papers, comrade," was a running household joke) and proudly contrasting it with the "freedoms" enjoyed in America where, he naively believed, such disgraceful abuses by government would never be allowed.

Even the Texas Court of Criminal Appeals majority in 2011 granted that "A checkpoint to verify drivers' licenses and vehicle registration is permissible, but a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is not." But how to distinguish "primary" from secondary purposes? Here, responding to "various criminal activities" was McCraw's first justification, with the license and insurance checks offered up afterward more as an excuse than a reason. But under the CCA holding, they get to do it until some federal court calls them on it.

DPS may have gotten away with this charade for now, mainly because the roadblocks weren't widely publicized until after they were all but completed. But if the agency escalates their use I would indeed expect court challenges. Indeed, I'd love to see someone caught up in the RGV roadblocks appeal their case on the grounds of the tactic's unconstitutionality. DPS has now explicitly said the roadblocks were part of a broader crime fighting strategy and I doubt their general counsel or public relations staff would be foolish enough to frame them that way in future cases. I'm amazed they've done so this time.

High-tech method to prevent dangerous high-speed chases

There are very few things police officers do that's more dangerous - for themselves and the general public - than engaging in high speed chases. For several years now I've thought technological advances had the potential to reduce the death count from high-speed chases substantially. As early as 2006, some departments experimented with GPS trackers fired at the chased vehicle as opposed to barreling through the public streets in dangerous pursuits. The leading company in the field, called Starchase, has created what the media are describing as a James-Bond type device that, with the push of a button, fires GPS-enabled dart from the grill of the police car at the vehicle in front of it, CNET reported this week:

The officer in the driver's seat presses one button, the grill opens, and the gun fires the [GPS-enabled] bullet.

If all goes well, the bullet, with a GPS device enclosed, sticks to the back of the car being pursued.

Once it does, the officer can slow down, because the suspect's car will be tracked along the computer screen.

One further advantage, of course, is that the suspect's car will likely feel the police have given up and hopefully slow down.

This seems so blindingly intelligent -- at least until miscreants catch on -- that there can't be a drawback.

According to a news report posted on the company's website, Austin PD has deployed the technology in 12 vehicles and is looking for grant money to expand the program. Cost is the big barrier to wider deployment. Each device costs $5,000 to install and each GPS dart costs around $500. But perhaps competition and/or economies of scale will drive those numbers down in years to come.

Excellent reporting on AZ prosecutor misconduct

In Arizona, "Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials," the Arizona Republic found in an extensive investigative series on prosecutor misconduct. The Arizona Supreme Court found prosecutor misconduct in more than one-fifth of all capital cases (18 out of 82) in the state since 2002, reported the paper, though the prosecutors involved were rarely sanctioned. See:

• Prosecutor misconduct alleged in half of capital cases
• Prosecutors under scrutiny are seldom disciplined
• Objections raised to Juan Martinez's conduct in Jodi Arias trial

Anyone interested in the subject should read the whole series: Excellent reporting on a difficult-to-research topic. Tomorrow the paper will publish a story on potential reforms; Grits will add the link to this post when it comes online. UPDATE: Here it is. One recurring theme in the stories was the failure of judges to call out prosecutor misconduct when it happens, which Grits has certainly noticed here in Texas whenever the issue comes up. Here's a notable excerpt from the first story on that score:

On a recent afternoon, a Maricopa County Superior Court judge was talking about prosecutors

She drew a line on the table with her finger and then placed an eating utensil there to mark the line.

“That’s misconduct,” said the judge, who asked that her name not be used.

Judges are loath to comment on cases for ethical reasons — and because they need to remain impartial to the attorneys who come before them.

Then she placed another utensil an inch away and parallel to the first on the table.

“That’s reversible error,” she said, referring to the level of misconduct that can get a sentence or conviction thrown out.

She put her finger in the space between the utensils and said, “That’s where a lot of prosecutors operate.”

Maricopa County Attorney Bill Montgomery had a quick counter.

“If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court,” he said. “However, mere differences of opinion as to how a case should be tried cannot be the standard either.”

He's got a point: Whether it's because so many judges themselves are former prosecutors or just because of plain old cowardice, the failure of judges to rein in prosecutor misconduct inarguably is the main reason it usually goes unchecked.

Budget smoke and mirrors: Lege should stop raiding dedicated 911 fees

KXAN-TV had a good report recently (Oct. 25) on the diversion of "dedicated" 911 fees on Texans' phone bills to certify the state budget instead of paying for improved 911 services. Here's a notable excerpt:

The 911 surcharge at the bottom of your phone bill is earmarked for the Commission on State Emergency Communications. For about one-third of Texas' population - the rural areas like Burleson County - that state funding is critical.

"It's coming to the point - just like with a car or a computer or any other big piece of technology or equipment - that it's going to get to the end of its life, and it's going to become obsolete," said Kelli Merriweather, CSEC executive director.

Merriweather is working to digitally upgrade the entire state to Next Generation 911. You could send texts, pictures and video to the dispatcher in an emergency.

"It's going to be a long transition, and it will be a costly transition,” Merriweather said, who estimates CSEC has enough in the bank to pay for it nearly three times - about $178 million.

But state lawmakers will not let the agency spend that stockpile.

“Nobody wants to talk about the dirty little secret,” said Sen. Kirk Watson, D-Austin.

Watson explained that the Legislature is not using all of the 911 money for its intended purpose, and it's not using that money for anything else. The money, he said, is simply sitting in the bank unspent to make the state budget appear to be balanced.

"They say, 'All right, how about we just put a fee or a tax on you and we promise you we will use it to pay for that service, something that's popular like a 911,’” Watson said. “Then of course, when they get into the legislative session, they can't balance the budget, so they cook the books."

And this financial trick goes far beyond the 911 money. There are more than 200 accounts meant to pay for things like sexual assault programs, breath-alcohol testing and state parks.

A decade ago, the total amount of this unspent money across the board was about $1.6 billion. Now it is estimated to be about $4.2 billion.

Watson says "nobody wants to talk about" diversion of these funds, but Grits has long despised this phony-baloney budgeting maneuver, which gums up public policy decisions in every situation where it's deployed. The state could fund impressive improvements to the 911 system with $178 million, or if they're not going to spend it, they could reduce the fee. Pick one, but don't gather it under false pretenses then use it to pretend the budget is balanced.

Strip searching in jail overkill for minor traffic violations

Last year the US Supreme Court okayed jails strip searching defendants upon entry, even for minor offenses. CBS-11 out of Dallas reported last week on a case in Richland Hills where a driver was arrested by the city marshal for an unpaid ticket from August (rolling through a stop sign), during which she was forced to disrobe at the jail. Reported the TV station:

[Sarah] Boaz’ expected trip to work Wednesday morning never happened. Because of her unpaid ticket, the Richland Hills City Marshal was waiting at her house with a warrant for her arrest. “I’m like, nobody puts out a bench warrant after 60 days. Why would you do that? You wouldn’t do that.”

Even when Boaz arrived at the jail, in handcuffs, she still didn’t think it was real. Then a female officer started giving her instructions. She remembered the officer saying, “’I’m going to need you to undress. I’m going to need you to stand against the wall. Please don’t step in front of this white box, or I’ll take that [as]… aggressive toward me. Obviously I am going to jail.”

CBS 11 News learned being stripped down is standard procedure for anyone brought to the jail in North Richland Hills. In an email to CBS 11 News Friday morning, the North Richland Hills Police Department said though Boaz was forced to undress, the search is not considered a strip search. In that email they said, “She was given a dress out. Before they go into the cell they are taken by a detention officer of the same sex to a private room with no cameras. They have to remove all clothing and they are given a jumpsuit. The officer searches their clothes, at no time does the officer touch them.”

Richland Hills is small enough that it only has one marshal. Warrants for unpaid tickets don’t sit around for months, like they might in larger cities.

Attorney Jason Smith told CBS 11 News though, there’s nothing requiring the city to put people in jail. “The constitution doesn’t keep the government or government officials from using common sense. Unfortunately, some police officers, some governments get overly aggressive because they want that ticket revenue.”

Ms. Boaz may perhaps be forgiven for failing to see the distinction between being forced to strip in the jail and a "strip search." The Supreme Court's ruling last year left the decision to strip search jailed defendants up to the discretion of localities, but the decision leaves no recourse when that discretion is abused. Putting drivers through that ordeal for failure to pay small-time traffic fines seems like overkill.

Another question comes to mind: Is it a good or bad thing that the room where strip searches are performed had no camera? Eliminating cameras there might prevent voyeurism on the part of other jailers, but it also means any potential abuses during the process wouldn't be documented. What do readers think?

Cold justice, bad optics, junk science, cyber-security, and cocaine on your cash

Here are a few odds and ends that caught Grits attention last week but failed to make it into independent posts:

Are roadside 'contraband detectors' junk science?
The Liberty County Sheriff has purchased "contraband detectors" for use at traffic stops, but looking a bit more closely at the specs for the tech, Grits wonders if these devices would really provide probable cause sufficient to justify a search - particularly intrusive ones involving dismantling a vehicle. The device doesn't really identify "contraband" at all but is a "density meter" that ostensibly can be used to find hidden compartments. Does a "hit" really identify contraband if it's "triggered by an abrupt change in density"? That's a lot less precise than a dog sniff, which themselves are pretty error prone. Many things besides contraband can account for changes in density in various parts of a vehicle. This isn't "junk science" in the sense that density meters aren't accurate, but law enforcement interpreting their readings to imply contraband is present may justify the term.

Cold Justice, Bad Optics
The Houston Chronicle (Oct. 23) posted a story about a widow convicted of the cold-case murder of her husband in 1985, when she concocted a fantastic story about being raped twice in the same week by the same stranger, claiming the second time he murdered her invalid husband. Notably, "In 2008, police arrested the widow, who had been a civilian employee at the Houston Police Department as her two sons climbed the ranks as police officers." Then-Judge Kevin Fine threw out the case at the time, agreeing with her attorneys that too much time had passed to prosecute her. After an appellate court said that was wrong (there's no statute of limitations on murder), last week, Judge Ryan Patrick, son of Lt. Governor candidate and state senator Dan Patrick, sentenced the 71-year old defendant, who allegedly now suffers from "dementia and a host of other health issues," to six months in jail and ten years probation as part of a plea deal. One wonders to what extent her connections with Houston PD may have hindered or delayed the investigation and prosecution, or contributed to the lenient plea deal? Maybe not at all, but the episode suffers from "bad optics," as the politicians say.

What does it take to get a Houston cop fired?
Speaking of bad optics, on Tuesday, the Houston Chronicle editorialized, "What does it take to get a bad HPD officer fired? It's shockingly hard to do - even in a high-profile case." Citing a Texas Observer investigation over the summer (discussed on Grits here), the editorial concluded:

Inside HPD's labyrinthine appeals system, legitimate complaints can die in a dizzying number of procedural ways. And even those that the department deems legitimate can be overturned - as in the Holley case - by an independent arbitrator, sometimes a person who's spent only a couple of days on the case.

A few bad cops can wreck a community's trust in its department. HPD needs to do a better job of policing itself.

Ex-wife of Mexican president implicated by defense in money laundering trial
AP on Thursday (Oct. 24) published a story about an El Paso lawyer accused of money laundering for Mexican drug runners. Reportedly, "Delgado’s defense team has claimed that associates of Lilian De La Concha, the ex-wife of Mexico’s ex-president Vicente Fox, had asked him to help move the funds associated with the inheritance and the construction companies." The attorney says he didn't know the funds involved were drug money. UPDATE: This fellow was convicted. Evidence sounds flimsy, mostly based on an un-recorded and later recanted confession to federal agents about which the defendant denies key details. Another case where recording custodial interrogations would clear up a lot of uncertainty.

Cocaine on your cash
When drug sniffing dogs "alert" on cash at at traffic stop the money is generally seized and often later becomes the subject of asset forfeiture claims. Muckrock.com, an outfit that files voluminous freedom of information requests and publishes the results online, secured documents showing that "A study of Chicago Federal Reserve Bank cash found a third of randomly selected money samples of $50 and $100 bills in general circulation failed the test. Ultimately, the DEA recommended 'the project be terminated.'"

Warrants for cell-phone location data an easier call sans 'third-party doctrine'
The Jurist had an essay analyzing a case requiring warrants for police to access cell-phone location data from the New Jersey Supreme Court, which was the first state-level high court in the nation to do so. Unlike Texas and federal jurisprudence, New Jersey law does not recognize the "third party doctrine" which holds that people have no privacy interest in information shared with vendors or other third parties. I've wondered if it might be possible to similarly attack the third-party doctrine at the legislature on a statutory basis. That bad, judge-created exception to the Fourth Amendment from the 1970s (Smith v. Maryland) creates a lot of mischief in the internet age. The Texas House this year overwhelmingly passed legislation to require a warrant for cell-phone location data but a parliamentary maneuver prevented the Senate from voting on it. Two states so far, Maine and Montana, have passed laws requiring warrants for police to access that data.

Why NSA cyberspying makes Americans less safe
Since the NSA phone and cyberspying scandals aren't Texas-specific issues and have been widely covered elsewhere, this blog has largely ignored the subject (though personally I've watched it all unfold fairly closely). But for those keeping track, a pair of essays from IT security expert Bruce Schneier last week merit attention:

• The Trajectories of Government and Corporate Surveillance
• Defending Against Crypto Backdoors

I'd also missed an excellent essay from earlier in the month in which Schneier explained why the NSA's tactics pose cyber-security risks to average Americans, arguing that "the NSA is subverting the Internet and turning it into a massive surveillance tool." Wrote Schneier:

Among IT security professionals, it has been long understood that the public disclosure of vulnerabilities is the only consistent way to improve security. That's why researchers publish information about vulnerabilities in computer software and operating systems, cryptographic algorithms, and consumer products like implantable medical devices, cars, and CCTV cameras.

It wasn't always like this. In the early years of computing, it was common for security researchers to quietly alert the product vendors about vulnerabilities, so they could fix them without the "bad guys" learning about them. The problem was that the vendors wouldn't bother fixing them, or took years before getting around to it. Without public pressure, there was no rush.

This all changed when researchers started publishing. Now vendors are under intense public pressure to patch vulnerabilities as quickly as possible. The majority of security improvements in the hardware and software we all use today is a result of this process. This is why Microsoft's Patch Tuesday process fixes so many vulnerabilities every month. This is why Apple's iPhone is designed so securely. This is why so many products push out security updates so often. And this is why mass-market cryptography has continually improved. Without public disclosure, you'd be much less secure against cybercriminals, hacktivists, and state-sponsored cyberattackers.

The NSA's actions turn that process on its head, which is why the security community is so incensed. The NSA not only develops and purchases vulnerabilities, but deliberately creates them through secret vendor agreements. These actions go against everything we know about improving security on the Internet.

It's folly to believe that any NSA hacking technique will remain secret for very long.

Details on new TX reporting requirements for appointed counsel

The Texas Indigent Defense Commission (TIDC) had issued guidelines regarding new county reporting requirements (pdf) for appointed counsel for indigent defendants in criminal cases under HB 1318, which was passed earlier this year by the Texas Legislature. (See an "implementation guide" related to the bill prepared by the Texas Criminal Justice Coalition.) Attorneys must submit their first caseload reports on or before October 15, 2014, but the TIDC released the guidelines earlier this month to give everyone plenty of lead time. Here's what appointed attorneys must submit beginning next year:

(1) the percentage of an attorney’s total practice time (time spent in legal practice in all jurisdictions) that was dedicated to work on trial and appeal appointments in adult criminal cases in that county’s district and county courts during the fiscal year beginning on the preceding October 1 and

(2) the percentage of an attorney’s total practice time that was dedicated to work on trial and appeal appointments in juvenile delinquency cases (cases alleging delinquent conduct or conduct indicating a need for supervision) in that county’s district and county courts during the fiscal year beginning on the preceding October 1.

Then, on November 1 of next year, Texas counties must report the following to TIDC:

(1) the number of appointments in the county for criminal and juvenile delinquency cases (cases alleging delinquent conduct or conduct indicating a need for supervision) made to each attorney accepting appointments in the county and

(2) information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure (i.e., the percentage of practice time devoted to appointed criminal and juvenile delinquency work in that county).

The system will be designed so the state can compile attorney's caseloads across counties. That should make for some interesting news stories when the first reports come out.

TIDC is holding a workshop for counties this week - see a related press release (pdf) and a 223-page workbook (pdf) for attendees -  to discuss details of the new reporting and related indigent defense issues.

Are police shootings of mentally ill on the rise?

The shooting of a mentally ill man by a Dallas officer and mendacious police reports by the shooter and his partner covering up the true events are sure to bring questions about policing the mentally ill to the fore, particularly in Big D. In that case, it's clear in retrospect the officers were never under attack. But the Wall Street Journal reported this week (Oct. 22) that:

Anecdotal evidence suggests violent attacks on police officers by mentally unstable people have been increasing over the past decade, said James Pasco, executive director of the Fraternal Order of Police, which represents 330,000 law-enforcement officers. Definitive data is scarce, in part because mental-health records are restricted by federal regulations and state laws. ...

The Federal Bureau of Investigation keeps track of instances of "justifiable homicide," which it defines as "the killing of a felon by a law-enforcement officer in the line of duty," but it doesn't note which of those involve mental illness. While crime rates nationally have fallen almost every year since the late 1990s, justifiable homicides by police officers have risen, from 297 in 2000 to 410 in 2012.

Hidden within that category is what is known informally as "suicide by cop," when a person intentionally provokes an officer into using lethal force. Chuck Wexler, executive director of the Police Executive Research Forum, in Washington, D.C., which researches law-enforcement issues, said he believes this type of suicide is increasing in frequency.

The Oct. 14 Dallas episode would have been portrayed as just another statistic to plug into the following graphic if it weren't for home surveillance footage capturing the event:

The case in Dallas shows that "justifiable" is often in the eye of the beholder. If there hadn't been video, Grits has little doubt the shooting would have been dismissed by the media and police brass as another "isolated incident," with local officials and the police union piously blaming the victim in the press. Grits has maintained the instance provides a strong argument for departments requiring officers to wear body cams they cannot disable to prevent or defuse those sorts of he-said she-said conflicts. The mother of the Dallas victim told the Morning News she:

wants officers to wear cameras on their uniforms from now on.

Brown, who offered apologies to [the victim's family] at the news conference, said he would consider uniform video cameras, which he called “the future of law enforcement.”

But for now, Jackson said she is afraid to call the police. She said she is fortunate there was a video.

“Other citizens — they have no leg to stand on unless they’ve got a video,” she said.

She's got a point. The Dallas case, - as well as the WSJ story, which is full of tragic anecdotes - serves as a cautionary tale for people with mentally ill family members. Folks may be less likely to call for help when mentally ill family members become out of control if they think, as in Dallas, their son, daughter, sibling,  etc., may be shot on sight.

Polunsky unit short 130 COs

An announcement of a TDCJ jobs fair in Polk County included this tidbit:

Approximately 130 correctional officer positions are available to be filled at the Polunsky Unit, a maximum security prison located in Livingston.

“We’re trying to get as many applicants as we can who are qualified,” said Brown.

Basic qualifications needed to be screened for employment include a high school diploma or GED, no felony charges and copies of a Social Security card and driver’s license.

The salary of a correctional officer ranges from $2,435 to $3,240 per month. Starting salary is increased for individuals with a Bachelors degree or two years active military service.

That's a lot of jobs to fill in tiny Livingston, whose population according to the 2010 Census was 5,335. At that salary level, it's hard to imagine many folks moving to rural Southeast Texas.

Dallas cop may become first DPD officer charged for on-duty shooting since 1973 (UPDATED)

Dallas police Officer Cardan Spencer, who shot a mentally ill man then filed a false police report regarding the circumstances has been fired and now faces could face aggravated assault charges, the Dallas News reported today. (Or not; see the update below.) The department also raised questions about why Spencer's partner backed up his erroneous report:

The two officers said Spencer shot Bennett outside his home after he stepped toward them and threatened them with a knife. But a neighborhood surveillance video cast doubt on that sequence of events, and an initial charge against Bennett was dropped.

“There were no two steps,” Brown said, noting that investigators also reviews dash-cam footage of the shooting. “There was no raising of the knife.”

[Officer Christopher] Watson claimed “acute stress” may have colored his statement after his partner shot Bennett, but the chief cast doubt on that explanation and called for a supplemental internal affairs investigation into the officer’s actions.

“We were really taken aback that the first statement written by Officer Watson was not what happened,” [Dallas Police Chief David] Brown said.

Hard to interpret these events any other way than Spencer covering his own ass through a false report and Watson similarly covering for Spencer. If there had been no home surveillance video, who thinks anyone would have believed witnesses contradicting the officers' accounts? According to the Dallas Observer, this is would be the first time since 1973 a Dallas police officer has faced criminal charges related to an on-duty shooting.

See related Grits coverage. UPDATE: Remarkably, a district judge refused to sign the arrest warrant, the DMN said in an update to the above-linked story, so the DA will now take the case to a grand jury. That doesn't happen often. If police had video of you or I doing the same thing, do you think any judge in Texas would have hesitated to sign the warrant? Press reports so far have not named the judge who turned down the warrant application. That information needs to be made public.

Former prosecutor, now a judge, embroiled in Elizabeth Coker texting scandal

Following Polk County District Judge Elizabeth Coker's resignation in the wake of revelations that she'd texted advice to prosecutors during trials, the prosecutor in the watershed case, Kaycee Jones, who was since elected to a judgeship, also finds herself in hot water, AP reported Oct. 23. In a letter to the state bar's disciplinary counsel:

Capital case overturned because ineffective counsel failed to challenge flawed forensics

The Court of Criminal Appeals yesterday granted a habeas writ from Manuel Velez, a capital defendant out of Brownsville whose case was the subject of an investigative report by Pam Colloff at Texas Monthly earlier this year. They found Velez's defense counsel were ineffective, improperly failing to investigate the case or to call rebuttal experts to challenge questionable scientific evidence establishing the timing of abuse to the victim, 11-month old Angel Moreno. Here's Colloff's description of the disputed evidence:

Velez’s attorneys won the right to hold an evidentiary hearing, which took place last December. During the weeklong proceeding, not one of the seven medical experts who testified supported the state’s theory of the case. The state’s own expert witness, Dr. Norma Farley—who conducted the autopsy back in 2005—backed away from much of her original trial testimony, in which she stated that all of Angel’s injuries had taken place within two weeks of his death. Some, she allowed, could be 20 to 36 days old. Two forensic pathologists and a neurological surgeon testified that Angel’s skull fractures were more than two weeks old, and perhaps months old. Forensic pathologist Dr. Janice Ophoven explained that not much trauma was needed to push Angel into a critical state on October 31, 2005, if his brain was already swollen from head trauma. A rapid increase in head circumference is evidence of “increased intracranial pressure,” she said, which made the boy “a time bomb.”

The CCA's ruling suggested that the victim's mother - who Colloff noted received a lenient plea deal in exchange for her testimony against Velez, though his lawyers did not disclose that to the jury - may have been the real culprit: "Family members and neighbors also testified at the habeas hearing that they witnessed the victim's mother neglecting and abusing him and his siblings in the months and weeks before his death. during tht time they also observed that he displayed symptoms, such as lethargy, that were consistent with head trauma."

The high court ruled that the record supported the district judge's conclusion that "there is a reasonable probability that, but for defense counsel's failure to investigate and present evidence, the outcome [of the case] would have been different." The case now heads back to the Cameron County DA who must decide whether and how to proceed.

CCA considers volte-face on DPS crime lab fiasco

Yesterday morning, Grits attended oral arguments at the Texas Court of Criminal Appeals regarding the pivotal habeas corpus writ for Leroy Coty, one of thousands of defendants, including several hundred out of Harris County, whose cases were tainted by having drug evidence evaluated by fired and disgraced DPS-Houston crime lab analyst Jonathan Salvador. Readers will recall that Salvador was terminated after he was caught drylabbing in at least two cases. An investigation by the Forensic Science Commission found Salvador was generally mistake-prone, possessing a poor understanding of the science underlying his job, and appeared to have falsified results to cover up his weaknesses. Between 2006 and 2012, he analyzed drug evidence in nearly 5,000 cases.

The posture of the case before the court was unusual, to say the least, because the CCA already ruled on these issues earlier this year in unanimous, per curiam opinions that declared defendants were entitled to new trials in any case based on Salvador's analyses. So far, 18 cases representing 141.5 collective years of sentences have been overturned. The lawyers arguing the case were Bob Wicoff from the Harris County Public Defender office and Joshua Reiss on behalf of the Harris County District Attorney. (There were no reporters at the hearing so that makes this account a Grits exclusive.)

Though Mr. Reiss left open the door for potential exceptions, both he and just about everyone else who has examined these cases agreed that habeas writs should be granted when drug evidence has since been destroyed because there's no evidence left to re-test. (He suggested other evidence like video, dog sniffs, and field tests might still be sufficient to uphold guilty verdicts.) But in Ex Parte Hobbs, the CCA earlier this year expanded the universe of defendants entitled to relief far beyond that threshold, declaring that, "While there is evidence remaining that is available to retest in this case, that evidence was in the custody of the lab technician in question. This Court believes [Salvador's] actions are not reliable; therefore custody was compromised, resulting in a due process violation. Applicant is therefore entitled to relief." In essence, they said defendants deserved a new trial in every case where Salvador analyzed evidence.

So why was Leroy Coty's case now before the court when the CCA had so recently decided the issue? Clearly some of the judges suffered from buyer's remorse. But it made for an odd hearing because the court was asking Mr. Reiss to argue against its own, recent rulings and asking Mr. Wicoff to defend them, with the panel fairly rigorously questioning both of them. Judging by the reactions from the bench, it's pretty certain Presiding Judge Sharon Keller, Judge Barbara Hervey and probably Judge Larry Meyers were among those questioning their earlier decisions. By contrast, Judge Michael Keasler most strongly advocated the stance the court had earlier taken: That any case Salvador worked on was suspect because Salvador had proven himself to be dishonest.

Ironically, Wicoff pointed out, that's also the stance the Harris County District Attorney had taken earlier this year regarding pending cases where Salvador analyzed evidence, dismissing all of them whether or not evidence was available for re-testing. The question before the court (again) was whether that same, per se rule should apply to those already convicted.

Responses to the Salvador fiasco have varied widely. In some counties like Fort Bend, Wicoff told the court, the DA had requested that every piece of evidence be re-tested (belatedly, Grits would add). In Galveston, DA Jack Roady early on agreed to relief in every case Salvador worked in that county. Similarly, Walker County DA David Weeks announced last spring that, “It’s clear that all the cases (Salvador) worked on are irreparably damaged. ... The defendants will be appointed attorneys and arrangements will be made for expunging their records. It blew up in our faces.”

In Harris, though, the DA requested re-testing only after defendants filed habeas writs - so far around 40 of them out of roughly 400 - and the state would like to keep the number of overturned cases to a minimum. Neither Reiss nor Wicoff had details for the court about what's going on in other jurisdictions, but Wicoff said most of the 40 cases being handled by his office involved low-level charges where defendants received community supervision. Only one of his 40 clients is currently in prison, he said, arguing that, in Houston, at least, ruling for Mr. Coty would not "open the floodgates."

Judge Cathy Cochran laid out the court's options: To establish a "per se presumption" that all of Salvador's cases are inherently tainted, as the court did in earlier cases, or to volte-face and declare the presumption "rebuttable," evaluating each case individually based on the "totality of the circumstances," a potentially daunting task given the volume of cases Salvador worked on.

Reiss, for his part, argued that the scope of Salvador's misconduct so far appeared limited. He said DPS had performed re-testing in 574 cases and thus far taken only eight corrective actions, a rate of just 1.3%. He cited the Forensic Science Commission report to say that evidence still existed for re-testing in 50-75% of cases. In Coty's case, he said, there is additional evidence including video, a "dog sniff," a cereal box where the drugs were allegedly found, and a "judicial confession" (read: a guilty plea). He said there was no basis to question the chain of custody or believe the evidence had been subject to tampering.

One aspect of Reiss' argument struck me as patently incorrect and went un-rebutted by Wicoff. Judge Elsa Alcala asked if there were any "pattern" to Salvador's misconduct, e.g., if his work had been satisfactory in the beginning and then some event changed his behavior. Reiss replied that was the case, pointing out that Salvador's poor employment evaluations did not begin until 2009. That seemed to imply Salvador's earlier work needn't be questioned. But as Grits reported in January, that somewhat misstates the situation:

The office suffered from a "culture" that "tolerated under-performance" because of high case loads, said Dr. Nizam Peerwani. DPS managers were hesitant to record problems in an employee's file for fear such blemishes would give fodder to defense attorneys to impeach testimony in court. Salvador's annual performance reviews identified recurring problems with low output, lack of attention to detail, taking shortcuts, and too many corrections in his tech reviews. But as a general practice, employees who made it through the one-year probationary period at the lab "were dug in," said a DPS manager. [Commissioner Sarah] Kerrigan said there was  a "perception among staff that termination was unlikely" regardless of performance.

Indeed, FSC interviews with Salvador's supervisors and peers indicated that his main problem was a failure to adequately understand the basic chemistry underlying the work he performed, leading to excessive errors (one in three cases he worked on was sent back by a supervisor for correction) and eventually, taking shortcuts including drylabbing. True, the first recorded drylabbing episode was in 2009, but it's difficult to imagine that from 2006 until then Salvador understood the chemistry but later he did not. And his peers told the FSC he had under-performed from the beginning. If the judges actually read the FSC report, which was included as an attachment to the state's brief, they should reach the same conclusion.

The decisive factor may end up being that Coty is not asking the court to render a verdict but simply to dismiss his case without prejudice. If he prevails, the state would still get an opportunity to re-try these cases, a fact in which the court appeared to take comfort. Wicoff argued that, because drug evidence was in the custody of the state and Salvador was their agent, the burden should fall on the prosecution to prove legitimacy of the evidence. The place to do that, he said, was before a "finder of fact" at the trial court level, where Mr. Salvador could be put on the stand, cross-examined, and answer questions about the chain of custody raised in the court's earlier rulings. Under questioning from Judge Cochran, Mr. Reiss said that burden should fall on Mr. Coty in his habeas application, comparing the situation to instances of juror misconduct. But the state's counterarguments didn't seem to satisfy the panel.

Guessing outcomes from oral arguments is generally a fool's errand, but to play the fool for just a moment, I'll try. To me, it's hard see how Judges Keller, Hervey and Meyers come up with five votes to reverse their earlier ruling without Judge Keasler, whose support for a per se presumption seemed resilient and unbent by the arguments presented. Judge Tom Price openly agreed with Keasler and Judge Alcala seemed to favor the per se rule unless there was reason to believe Salvador's earlier work was of acceptable quality. Judge Paul Womack expressed concerns that indicated sympathy for Mr. Coty's position. And Judge Cochran seemed reticent to accept the state's urging that every individual case be evaluated based on the "totality of the circumstances," which would lead to an open-ended process that could drag on for years and create a lot of extra work for the court. Judge Cheryl Johnson didn't participate as much in the questioning so it's hard to get a read on her stance, but it didn't seem to me there were five obvious votes willing to reverse the court's earlier decisions. Time will tell.

For detailed background on the case, see  Wicoff's brief, the state's response, and the Forensic Science Commission's report.

SA 4 may benefit from new habeas statute affording relief in junk science cases

It's gratifying to see that a new statute passed this session by state Sen. John Whitmire and Rep. Sylvester Turner may help free the so-called "San Antonio Four," who were convicted in part using what turned out to be flawed scientific testimony. (Full disclosure: Grits helped advocate for the new statute on behalf of the Innocence Project of Texas.) Reported the SA Express News' Michelle Mondo ("'S.A. 4' evidence now called flawed," Oct. 23):

All four women who say they were falsely accused in 1994 of child sexual assault could be out of prison by the end of the year following an acknowledgement by prosecutors Tuesday that faulty scientific evidence helped convict them.

The latest development in the so-called “San Antonio Four” case, which has garnered national attention, comes as attorneys for the women filed a series of court documents Tuesday seeking new trials.

The district attorney's office is in agreement that the evidence was flawed and plans to work with defense attorneys to bring to a judge a bail arrangement for Elizabeth Ramirez, 39, and her friends Cassandra Rivera, 38, and Kristie Mayhugh, 40, officials said.

See more background on the case from Mondo's prior coverage. A District Judge must issue findings of fact and then the Court of Criminal has final say, but prosecutors agreeing to bail for the defendants is positive sign. Even if the convictions are overturned the DA could still seek retrials, as only one of two alleged victims has recanted. But the state has now admitted forensic evidence in the case doesn't withstand scrutiny in light of subsequent scientific revelations:

Enrico Valdez, chief of the district attorney's appellate division, said Tuesday that while other aspects of the defense's arguments may need to be litigated, the state's expert witness confirmed that changes in how sexual abuse is diagnosed would have resulted in different testimony that wasn't as damaging.

Dr. Nancy Kellogg testified at both trials that a mark on the hymen of one of the victim's was a scar and indicative of penetration and trauma.

But, a 2007 study by the American Academy of Pediatrics “concludes that torn or injured hymens do not leave scars as a matter of scientific fact,” the recently filed documents said.

“Dr. Kellogg now affirms that her trial testimony was materially inaccurate,” defense attorneys said in the new documents.

Kellogg declined to comment about the case.

The court filings are among the first to use the state's new “junk science” law, which went into effect in September, defense attorney Mike Ware said in a news release.

The law allows for certain types of appeals when scientific evidence comes to light that wasn't available at the time of the trial. 

In addition to the San Antonio Four case, this week a District Judge in Montgomery County recommended relief for Neal Robbins based on the new statute in the case whose misbegotten outcome ultimately spurred the Texas Legislature to take action. See the findings of fact in Robbins and a discussion of how the case relates to the new law in this post.

For more background on the new law, see written testimony I submitted to the Lege last spring on behalf of the Innocence Project of Texas.

MORE: On the SA4 case from the local Fox affiliate.

Disputing the indisputable: Media exaggerate dangers to police

Reacting to release of video contradicting a Dallas police officer's official report that he gunned down a mentally ill man because he approached him and his partner with a “knife raised in an aggressive manner” - an account that turned out to be demonstrably false - a Dallas Morning News editorial on the topic opened with the following lede: "No one can seriously dispute the minute-to-minute danger of being a police officer in a pressurized urban environment like Dallas. Any cop would tell you that the moment you drop your guard could be your last."

Allow Grits to "seriously dispute" that common but misleading meme. "Any cop" may tell you that, and I'm sure several will show up in Grits' comment section to do so, but that doesn't make the statement any more truthful. Police have more dangerous jobs than, say, editorial writers, it's true, but there are many common jobs with much higher on-the-job death rates. According to the latest Census of Fatal Occupational Injuries (pdf), for example, in 2012 police and sheriff's patrol officers died on the job at a rate of 14.9 per 100,000 full-time equivalent employees (FTEs). By contrast, the folks who pick up municipal garbage were 82% more likely to die on the job, dying at a rate of 27.1 per 100,000 FTEs. But when was the last time you read a newspaper editorial about garbage collectors opining that "the moment you drop your guard could be your last," or that they "put their lives on line every day," even though they do.

No doubt, police officers have more dangerous jobs than most of us. Much of that danger stems from spending so much time behind the wheel of a vehicle. Other transportation-based jobs have even higher on-the-job death rates. In 2012, "driver/sales workers and truck drivers" died at a rate of 22.1 per 100,000, or 48% higher than patrol officers. Taxi drivers and chauffers died on the job at a rate of 14.9 per 100,000, or exactly the same rate as police.

Certainly, it's inarguable that cops' jobs are more dangerous than average workers. In 2012, the on-the-job death rate for wage and salary workers overall was 2.7 per 100,000 FTEs; for self-employed workers the rate rose to 11.9. (Men were much more likely to die on the job than women; the rates were 5.2 and 0.6 per 100,000 FTEs, respectively.) But there are many common jobs where on-the-job death rates substantially outpaced that of patrol officers. Here are a few examples from the CFOI document linked above to provide more context. The figures represent on-the-job death rates per 100,000 FTEs in the industry:

Logging:                                                                 127.8
Fishers and related workers:                            117.0
Aircraft pilots:                                                      53.4
Extraction workers (natural resources):          46.9
Roofers:                                                                  40.5
Refuse and recyclable materials collectors:     27.1
Electrical power installers/repair:                    23.0
Drivers/sales workers and truck drivers:         22.1
Farmers/ranchers:                                               21.3
Construction workers:                                         17.4
Maintenance/repair workers (general):           15.0
Police and sheriff's patrol officers:         14.9
Taxi drivers and chauffeurs:                             14.9
Grounds maintenance:                                      13.9
Athletes, coaches and umpires:                       13.0
Drinking establishment employees:                13.0
Construction equipment operators:                 11.5
Painters:                                                                 7.5
Gas station attendants:                                       6.8
Plumbers:                                                              6.4
Security guards:                                                   5.8
Auto mechanics:                                                  5.0
Auto parts/tire store employees:                      4.6
Carpenters;                                                           4.5
All workers:                                                          3.2

In context, then, the Dallas Morning News is just wrong that "No one can seriously dispute the minute-to-minute danger of being a police officer," at least if we're defining "danger" in terms of the risk that any given day you go to work "could be your last." Their jobs are dangerous, no doubt, but nobody uses the same, over-the-top rhetoric to describe the risks faced by garbage collectors, roofers, or truck drivers.

Newspapers rely on sensationalist crime coverage to draw in readers so it's understandable why they'd want to play up the dangers of policing for dramatic effect. Fictional TV shows similarly overstate those risks for profit, though at least they don't pretend to be portraying reality. But it does a disservice to public-policy debates surrounding incidents like this latest Dallas shooting for the media to frame discussions in terms of the grave risks police officers face.

Dallas wants just-closed Dawson State Jail property for Trinity River development

Reported the Dallas News:

City and state officials are in talks about the future of the recently shuttered Dawson State Jail, which Dallas leaders have long eyed as a crucial spot for Trinity River Corridor Project development.

There’s no sign of an imminent sale of the property, but a Texas Department of Criminal Justice spokesman said the agency does not have long-term plans to keep it.

Dallas Interim City Manager A.C. Gonzalez opened the conversation last month with a letter to a TDCJ Chief Financial Officer Jerry McGinty. The letter included a friendly reminder that the city is “currently heavily involved in its highly visible and ambitious $2 billion Trinity River Corridor Project..”

“TDCJ’s Dawson Facility is located in immediate proximity to the planned Downtown (Reunion) Overlook, the single most important link between (1) the Dallas Central Business District and Convention Center and (2) the Trinity,” Gonzalez said. “The Downtown Overlook area will have unparalleled views of the two world class Santiago Calatrava Bridges and the two lakes, which are the centerpiece of the entire Trinity Lakes design.”

As the state considers its options for the jail property, Gonzalez asked that they “consider the City’s desire to create strong urban design and appropriate land uses in this area.”

Notably, of the three prison units Texas has closed since 2011, two of them - Dawson and the Central Unit in Sugar Land - sat in development corridors where local officials sought to transform the property for more lucrative economic uses. That may be a critical leverage point going forward if and when the Texas Lege considers further prison closures.

Congrats to Inside Books on 15 years of service

Congratulations to Austin's Inside Books Project, which will celebrate its 15th anniversary of providing books to Texas prisoners this weekend at the Texas Book Festival. Find their press release announcing the event below the jump:

Pecos DA challenges state fire marshal review of junk science in arson cases

A West Texas DA has sought an Attorney General's opinion seeking to stop the State Fire Marshal from reviewing old arson cases to identify flawed science, the Austin Statesman's Chuck Lindell reported (Oct. 19):

Rod Ponton, district attorney of a four-county area that includes Fort Stockton, believes the fire marshal overstepped his authority by examining — and discrediting — evidence used by his office to convict Sonia Cacy of dousing her uncle with gasoline and setting him alight.

In a letter dated Oct. 1, Ponton asked Texas Attorney General Greg Abbott to determine that the fire marshal has “no authority to make sweeping legal pronouncements on 20-year-old criminal cases.”

Abbott, who is running for governor, has until early April to deliver his opinion on the legality of the reviews.

In the meantime, State Fire Marshal Chris Connealy plans to continue examining old arson cases, lining up five more to be reviewed in December. Connealy said he will not abandon an effort that is improving the skills of arson investigators while taking responsibility for investigative techniques now known to be flawed, sometimes leading fires to be mislabeled as arson.

“It’s working extremely well,” Connealy said. “I think it’s a credit to the criminal justice system. I think it enhances it.”

In the interest of full disclosure, Grits works for the Innocence Project of Texas which is representing Sonia Cacy, whose case Ponton objected to the fire marshal reviewing. (See 2010 coverage of her case from the Texas Tribune.) IPOT and likely the Forensic Science Commission and the fire marshal will be responding themselves to the AG, however I'm not an attorney and not involved in that process. But I do know a bit about the underlying issues raised in Ponton's request (pdf), which relies mainly on an AG opinion issued in response to an earlier request by former Forensic Science Commission Chairman John Bradley.

Grits readers will recall that the AG shut down the FSC's investigation into the Todd Willingham case on the grounds that it had no authority to investigate older cases, an interpretation I found strained, at best. In response, state Sen. Juan "Chuy" Hinojosa authored and passed legislation this year specifically expanding the jurisdiction of the FSC and overruling the AG opinion, mooting those arguments. Apparently DA Ponton missed the memo.

Moreover, Ponton's stance in his request relies on a fiction: That the fire marshal is acting as an agent of the FSC in its review of old arson cases. While it's true the FSC recommended the agency undertake such a review, they actually rejected Cacy's case and the FSC has never formally undertaken an investigation in the matter. The fire marshal took up Cacy's and several other arson cases involving bad science on their own steam, not as the FSC's stalking horse. The whole brouhaha over their jurisdiction strikes me as off base and a sideshow.

As for Cacy's case, reported Lindell, the experts convened by the fire marshal found that:

• Today’s science doesn’t support a finding of arson. Instead, the cause of the Cacy fire should have been listed as undetermined.

• The most damning evidence — a forensic test that found gasoline on her uncle’s clothes — was based on misinterpreted results.

• With no smoke inhalation or heat damage to Richardson’s throat and lungs, there is no evidence he was alive at the time of the fire.

Instead, it appears that Richardson, a 76-year-old who smoked up to three packs of cigarettes a day, died of a heart attack while smoking in bed, Cacy’s lawyers argue, adding that numerous burn marks on the furniture show that Richardson was a careless smoker.

Other experts reached similar conclusions in 1998, prompting the Texas Board of Pardons and Paroles to order Cacy released from prison after serving less than six years of her 99-year sentence. Cacy’s murder conviction, however, was unaffected, and she remains on parole at age 66.

The fire marshal's review took no position on Cacy's guilt or innocence - they only examined the validity of forensic testimony at her trial. However, IPOT is pursuing habeas corpus relief for Ms. Cacy and that's what's got the DA hot under the collar.

Judge who texted tips to prosecutors resigns, admits no fault

Polk County District Judge Elizabeth Coker will step down Dec. 6 after it was revealed she texted advice and tips on cross-examination questions to prosecutors during criminal trials, the Houston Chronicle reported today. See prior, related Grits coverage:

• Texting while judging: Judge texted assistance to prosecutors during trial(s)
• Investigator: Judge allegedly texted tips to prosecutors during trial

Judge Coker admitted no wrongdoing, said the paper, though she faced disciplinary action by the State Commission on Judicial Conduct. At age 46, Judge Coker "has been on the 258th bench for 14 years and is the third generation in her family to serve on an East Texas bench."

My question: How is it that this woman hasn't lost her bar license?

MORE: From Your Houston News, which includes a link (pdf) to the State Commission on Judicial Conduct report and Judge Coker's response (pdf). Thanks to an alert commenter for the heads up.

Just don't call it a "jail"

Harris County and City of Houston officials learned in 2007 that voters don't want an expanded jail, so this year they're calling it something else. According to coverage from The Bond Buyer (Sept. 30):

Houston Mayor Annise Parker said the ballot proposal is “fundamentally different than what was asked a few years ago, which was about adding onto the county jail. This is a joint city-county project, and the public really appreciates the fact that the city and county are working together closely.”

At this point, likely voters appear to favor the inmate processing center, according to recent polls.

“Maybe it’s because we called it a joint inmate processing center as opposed to a jail, but that’s what’s on the ballot,” said Rice University Political Science professor Bob Stein.  “And more importantly, voters support this regardless of their perception of crime.”

Stein conducted polling for Houston stations KHOU and KHUF that showed 58% of respondents in favor of building the processing center, with 21% opposed.

The 2007 proposal for the jail and processing center was defeated, largely because African-Americans voted overwhelmingly against the measure, according to analysis of those results.

“In 2013, although 58% and by margins of 64 and 61 (percent) Anglos and Hispanics support this proposed initiative, African Americans oppose it slightly, 51-49,” Stein said.  “But I think a 58% margin is good; more importantly, there are no organized groups against this. So I think, the stars are aligned for this to pass and pass by a good margin.”

Harris County Sheriff Adrian Garcia told KHOU the center would “take the City of Houston out of the jail business, quit the duplication of operations, save the taxpayers money and get cops back out on the street faster.”

The inmate processing center is one of the lower profile issues on the Nov. 5 ballot that will include the election of the Houston mayor and city council. The Houston city elections are likely to bring out more voters from within the city limits than will vote in the suburbs, officials said.

Grits has fewer reservations about the Harris County Jail expansion bonds on the November ballot than I did the 2007 bonds that Houston voters rejected. The Harris jail's overcrowding problem stems from poor decision making by judges more than a lack of capacity, but the jail's booking center does need revamping and I don't mind combining the city and county jail facilities, so long as the city cells actually close.

Still, avoiding the term "jail" on the ballot for jail bonds speaks volumes. Likely somebody polled the terms and figured out the public didn't support expanding the jail but does support processing inmates quicker, as do I. Grits just believes that goal would be better served by reducing pretrial detention, and the only option voters have for achieving that goal at the ballot box would be electing different judges.

MORE: See a Houston Chronicle editorial supporting the bonds.

Voters should approve "Sharon Keller Disciplinary Case Memorial Amendment"

The Dallas Morning News, with tongue only partially in cheek, declared that Proposition 9 on the November ballot should be called the “Texas Court of Criminal Appeals Presiding Judge Sharon Keller Disciplinary Case Memorial Amendment.” They explained, "The State Commission on Judicial Conduct reprimanded Keller with a public warning in 2010 for her actions in closing the court before a death-row inmate could file a last-minute reprieve. Keller later got a special court to dismiss that reprimand, since the Texas Constitution does not specifically say a disciplinary case could lead to a warning, although the state’s legal code does."

See Grits' analysis of the underlying issues following oral arguments in Judge Keller's case. I suppose this was necessary at some level, but the Judicial Conduct Commission had ample authority to reprimand Keller legally, just not the cojones. Like the Ethics Commission, the Judicial Conduct Commission was seeking any excuse to reduce the penalty while acknowledging Keller's violations and ended up doing so in a ham-handed way that breached their constitutional authority. Still, as the Austin Chronicle noted, the amendment "would remove a disincentive to the conduct of open proceedings" and by that reasoning alone it deserves passage.

Online money laundering: Tricks of the trade

Via the MIT Technology Review, I was interested to run across this United Nations analysis (pdf) of online money laundering. Some of these methods I'd heard of - including the use of export goods and employment forums to launder drug money -  but the manipulation of multiplayer online gaming communities Grits had admittedly never considered. Here's a notable excerpt from the MIT Tech Review:

A common approach until recently was to use the Costa Rican digital currency service called Liberty Reserve. This converted dollars or Euros into a digital currency called Liberty Reserve dollars or Liberty Reserve Euros, which could then be sent and received anonymously — one of the few services to allow this. The receiver can then convert the Liberty Reserve currency back into cash for a small fee.

In May this year, however, the US authorities shut down the service and charged its founder and various others with money laundering.

But Richet says the closure of Liberty Reserve is unlikely to end these practices because there so many alternatives. These include WebMoney, Bitcoins, Paymer, PerfectMoney and so on.

Another increasingly common way of laundering money is to use online gaming. In a growing number of online games, it is possible to convert money from the real world into virtual goods services or cash that can later be converted back into the real thing.  “Popular games for this type of scam include Second Life and World of Warcraft,” says Richet.

Then there are the money mule scams. Most people will be familiar with the spam in which a high level official from a developing country asks your help to transfer significant amounts of money and are prepared to pay well for your services. But first, they require your banking details which they promptly use to empty your account and then disappear.

In a growing number of cases, however, the criminals do actually transfer large amounts of money into your account and then ask you to forward it. However, since this involves stolen funds that are being laundered, you are accountable for the crime.

Another scam is to offer people jobs in which they can make a substantial income working from home. However, the ‘job’ involves accepting money transfers into their accounts and then passing these funds on to an account set up by the employer. In other words, money laundering!

For those with any professional interest in the subject, the full 19-page report (pdf) is worth a read.

California's Jerry Brown vetoes legislation similar to Texas' warrant-for-email bill

California Governor Jerry Brown vetoed legislation similar to a bill passed here in Texas last spring requiring law enforcement to secure a search warrant to access cloud-based emails. Rick Perry, by contrast, signed Texas' Tea-Party backed legislation on the same topic.

Gov. Brown also vetoed legislation reducing penalties for low-level drug possession aimed at complying with a federal court order to reduce prison overcrowding. This despite a poll last year that found "62 percent of Californians agree that the penalty for possessing a small amount of illegal drugs for personal use should be reduced to a misdemeanor."

Arguably, conservatives seeking a less-government, liberty-minded approach to criminal justice should just look at what Jerry Brown does and do the opposite.

Police officer "victim" shoots man standing at distance with hands at his side

Here's a case out of Dallas that shows why police body cameras would be a great idea ("Video shows Dallas officer shooting man standing with arms at his side" (Oct. 17):

Family and friends of a mentally ill Rylie man want answers after a Dallas police officer shot him for no apparent reason Monday in broad daylight outside his home.

A police report says that Officer Cardan Spencer fired on Bobby Gerald Bennett, 52, after Bennett walked toward him and his partner with a “knife raised in an aggressive manner.”

But a neighbor’s video surveillance camera recording obtained by WFAA-TV (Channel 8) shows something different: It shows Bennett, who was seated in a chair, initially rolling back from officers as they advance on him. Bennett then stands up but does not move. His hands remain at his side and he is standing still when Spencer shoots him, firing his service weapon four times.

Normally, when officers claim a suspect approached them with a “knife raised in an aggressive manner,” that's the end of the story. Their word will be taken over any and all other witnesses. In this case, luckily, a neighbor's surveillance camera captured the episode. There was another officer on the scene. It'll be interesting down the line to see if his written report jibed with the video or the shooter's version. My guess would be the latter, assuming it was written before police knew the video existed.  Body cams would protect officers from false accusations and simultaneously provide documentation when their training and judgment fail them, as clearly happened here. Video serves as a general prophylactic for testilying and an antidote to post hoc confusion about what happened in the heat of the moment.

The episode also demonstrates the need for specialized police units to handle calls dealing with the mentally ill. The justice system too often serves as the front-line response to mental health crises, putting police in situations they don't understand and aren't trained to handle. That doesn't excuse what happened here, however I do empathize with officers confronting a mentally ill man with a knife.

Still, given the video, it's strikingly absurd that the arrest warrant affidavit lists Officer Spencer as the "victim." That's certainly not how it looked from a camera's-eye view. Dallas Police Chief David Brown has since ordered that aggravated assault charges be dropped. Go here to see the video (which irritatingly includes unrelated ads before and after the clip).

Climate-controlled hog barns spurred union participation in prisoner heat suit

Though the article didn't mention Grits, a Wall Street Journal report today ("Extreme heat tests prisons") credited a meme first articulated on this blog - that TDCJ is constructing climate-controlled facilities for its hogs while most prison units are left to bake in the summer sun - with the unprecedented decision of the state's leading prison-guard union to support an inmate lawsuit over excessive heat and oppressive working/living conditions.

Union officials said corrections officers have complained to Texas prison officials that the heat index inside facilities is often as high as 130 degrees Fahrenheit, but haven't been able to persuade them to make changes. They said they were driven to speak out after learning that the state spent $750,000 in June to buy six new barns with exhaust fans and misters to cool pigs raised for inmate consumption.

"We don't keep our animals in these type of conditions and that speaks volumes," said Lance Lowry, who worked as a corrections officer for 13 years and is now president of the Hunstville, Texas-based local of the American Federation of State County and Municipal Employees Union, which represents many state prison workers.

At least five other states currently face litigation over un-air-conditioned prisons, the paper said, but Texas is the only one where prison guards have lept into the fray. The Journal added some context from other jurisdictions:

Suits in other states have led to settlements and changes in recent years. In 2004, Wisconsin agreed to install air conditioning in the state's most-secure prison—a so-called Supermax—after a federal appeals court upheld a lower court's ruling that the prison had to maintain safe temperatures.

After a similar court finding in 2010, Arizona's Maricopa County Jail began housing mentally ill inmates on psychotropic drugs, which interfere with a body's ability to regulate temperature, in areas cooled to a maximum of 85 degrees. A separate suit on behalf of mentally ill patients in the Arizona Department of Corrections is pending. Arizona's prisons have air conditioning or evaporative coolers, said Doug Nick, a spokesman for the state's prison agency.

The paper added that:

In Texas, state law requires county jails to keep temperatures between 65 and 85 degrees. "They house pretrial detainees who have not yet lost certain rights," said Brandon Wood, executive director of the Texas Commission on Jail Standards. But similar requirements don't exist for state prisons. ...

In the last fiscal year in Texas ended Aug. 31, 55 corrections officers reported getting sick from heat, down from 92 the previous year, according to the state. At least 14 inmates have died from heat-related causes in the past six years, according to court records in the wrongful-death suits."

Former TDCJ-PIO: Agency 'suffers from intellectual incest'

After the Texas Department of Criminal Justice ran their Public Information Officer (PIO) Michelle Lyons out of her post, they briefly hired John Hurt, who was in charge of media relations at the Texas Department of Transportation for 20 years, to fill the slot. He was there for about ten minutes then suddenly Jason Clark, an internal hire, had the job. Duane Stuart at The Backgate Website caught up with Mr. Hurt and asked him why he left TDCJ. Here's how he responded:

"My last interview was with Time magazine about the expiring execution drugs. When they found out, they positively came unglued that I did what I was getting paid for. They even admitted the interview read well, they just didn't want the issue in the media. They just wanted to keep issues like the CO shortage and the outdated execution drugs as far out of the media as possible."  Mr. Hurt went on to explain, "The admin suffers from intellectual incest. They all live in a little town, went to the same little college in Huntsville and are terrified of new ideas." Mr. Hurt then offered his ideas on how to change the face of the public information office and the agency in general. "Moving the agency to Austin would be in everyone's best interest." "I tried to show them how to position themselves in a positive light and they didn't want any part of it. I've never worked in a stranger place."

Sounds about right. Now, of course, we know they didn't want the execution drug issue in the media because they'd conspired with a now-recalcitrant pharmacist to secure the drugs on the "down low," as he put it.

That said, I'm not sure moving them to Austin would help, though it's possible. Lately, Grits has come to consider both the TDCJ and Department of Public Safety PIOs basically worthless, and DPS headquarters are in the capital. To get any useful information out of either of those agencies these days requires an open records request, even for routine, workaday stuff that a few years ago would have been routinely disclosed by their media relations folks without going through that formal process. So I'm not surprised by Mr. Hurt's comments, but I'm glad he was willing to offer them publicly.

MORE: From The Dallas Observer.