Texas' habeas history fraught, but potent

The New York Times yesterday published an interesting article by former Rhode Island Chief Justice Frank Williams comparing the use and suspensions of habeas corpus writs during the Civil War by Abraham Lincoln and Jeff Davis, respectively. While Lincoln unilaterally suspended habeas corpus, famously defying the US Supreme Court over the matter, Williams pointed out that his counterpart, Jefferson Davis, thrice signed suspensions of habeas corpus passed by the Confederate Congress, and also requested authority to suspend it in other instances when he was denied. Interesting history on a rarely discussed topic. Williams concluded, IMO correctly, that:

Differences between their treatments of the writ [by Lincoln and Davis] can be traced to how they saw the abrogation of civil liberties contributing to the achievement of [their] goals, and not to any fundamental difference in political philosophy. Most important, Jefferson Davis was in practice no more committed to protecting the Great Writ than was Abraham Lincoln. Both men embraced the military and political realities confronting them in wartime.

That's a fair assessment. Davis' relative respect for the writ compared to Lincoln almost certainly had more to do with political expediency and a desire for recognition of the Confederate States by European powers than his profound respect for civil liberties.

However, the story reminded me of a Grits post last year detailing some of the history of wartime habeas corpus in Texas, which in at least some instances remained stronger than either the Union or Confederate national governments. Specifically, it's worth recalling an episode where the Texas Supreme Court ordered a Confederate military commander to release Union sympathizers who'd been confined in a military camp on suspicion of treason and conspiracy. When the general refused to comply with the court's writ, Chief Justice George F. Moore responded that:

If the refusal to obey the writ was by order of the commanding general, then he is the principal offender. Those by whom he has perpetrated so glaring an outrage upon the law and authority of this court are alike his subordinates in criminality and inferiors in rank. ... Better it would be for the prisoners who are in custody, though doubly guilty, beyond all that is charged against them, to go unwhipped of justice, than for the civil authorities to be subordinated to military control and made dependent on the consent of the latter for the discharge of its functions.

According to Moore's eulogist, "The commanding general bowed his head, purged himself of the contempt, and the doomed  men, rescued by the hand of the law from a drum-head court martial, were restored to their families." (See more detail in Grits' original post.) I could be mistaken, but to my knowledge there's no comparable Union example of the military suborning its goals to habeas corpus authority and the episode stands in stark contrast to Lincoln's open defiance of the US Supreme Court's application of the writ.

Certainly, as a NY Times commenter pointed out, not every episode involving Union sympathizers in Texas ended with similar comity, the most egregious example being the notorious Nueces massacre in which German Unionists were attacked and killed by Confederate forces as they tried to flee the state. But that episode never tested the Great Writ - Confederate soldiers attacked then summarily executed fleeing Germans in an extra-judicial action without any opportunity for the courts to intervene. Whatever Jeff Davis' stance toward habeas corpus, it seems clear to me its power was respected more during the Civil War, at least in Texas, than one might infer from Justice Williams' NY Times column.

After the Civil War was another matter. When Richard Coke - himself a former Texas Supreme Court Justice who, like George F. Moore, was ousted by the military government during Reconstruction - was elected Texas Governor in 1873 by a 2-1 margin, he openly defied a habeas corpus writ and assumed office in what can only be described as an extra-legal coup. Here's how the same Grits post described the episode:

The Texas Supreme Court declared Coke's election invalid in an extraordinary habeas corpus writ styled Ex Parte Rodriguez - a petition by a man accused of voting twice in a Harris County election. In a ruling handed down Jan. 6, 1874, less than two weeks before Coke's inauguration, "The judges ruled against the state and concluded that Rodríguez should be released because the election had not been valid." So the judgment on the election's validity was a secondary consequence of the ruling, which at its core was about a criminal conviction in a voting fraud case. In the political arena, though, it was viewed (as it was almost certainly intended) as an opportunistic means to rescind the election of a man the military government had openly deposed a scant few years before.

What happened next, though, must have been one of the most exciting moments ever in Texas politics, and certainly in the annals of Texas habeas law:

Disregarding the court ruling, the Democrats secured the keys to the second floor of the Capitol and took possession. [Incumbent Gov. Edmund] Davis was reported to have state troops stationed on the lower floor. The Travis Rifles (see TRAVIS GUARDS AND RIFLES), summoned to protect Davis, were converted into a sheriff's posse and protected Coke. On January 15, 1874, Coke was inaugurated as governor. On January 16, Davis arranged for a truce, but he made one final appeal for federal intervention. A telegram from President Ulysses S. Grant said that he did not feel warranted in sending federal troops to keep Davis in office. Davis resigned his office on January 19. Coke's inauguration restored Democratic control in Texas.

Imagine if, upon receipt of the Supreme Court order in Bush v. Gore, Vice President Gore had holed himself up in the White House with an armed contingent and assumed the Presidency anyway, with the military and law enforcement reluctantly acquiescing to his rule over the court's objections: That would be a rough, modern equivalent of Coke's bold ascension to Governor after his ouster from the Texas Supreme Court.

Thus, Texans' respect for the Great Writ had limits which, as with Jefferson Davis, were dictated in the Coke episode by politically expediency that ultimately trumped the rule of law by force of arms. Coke's ascension to power spurred the rewriting of the constitution and the establishment of Jim Crow, making it in retrospect one of the darkest moments in the state's hesternal lore.

So Texas' habeas history remains complicated and more fraught with political interference than many jurists and Confederate apologists might like to pretend. But Grits remains impressed that, even during wartime, Texas' Supreme Court continued to exercise habeas corpus and its authority was so revered that a Confederate general felt obligated to "bow his head" in deference.

Today, truncated and emasculated over time by both the legislature and jurists too deferential to state power, habeas corpus in Texas has devolved, until recently becoming nearly as anachronistic as the pardon power. But lately, its use in innocence cases and its application by the Court of Criminal Appeals to nullify an unconstitutional statute show signs of its nascent revival. As was true 150 years ago, habeas remains more potent in the Lone Star State than in the federal courts. Texans should view that as a matter of pride and do all we can to bolster and protect the Great Writ of Liberty from state actors who'd prefer to relegate its essential protections to the dustbin of history.

Trooper telemarketing, prosecutor problems, and other stories

Here are a few odds and ends that caught my attention today and may interest Grits readers:

Troopers association sues to keep up telemarketing scheme
The Texas State Troopers Association is the latest law-enforcement related entity to get in trouble for fundraising campaigns that spend more money on telemarketers than actually go to the organization. See coverage from the Austin Statesman and the Dallas Observer. Reported the former, "According to the organization’s 2012 tax forms, the group raised more than $3.2 million and paid $2.5 million of it to a telemarketing firm. The association’s largest expense, $311,000, was for salaries. Other costs included $76,000 for lobbying and $35,000 in benefits to members." The group has sued to avoid up to $1 million in fines and avoid several of its boardmembers from being banned from the group. TSTA is ostensibly a labor union - and they do lobby at the Legislature for better trooper wages and benefits - but most unions operate on dues, not donations. Grits has long despised these telemarketing schemes manipulating the public's sympathy for law enforcement.

Dewhurst: TJJD unit in Corsicana will close
The Austin Statesman is reporting that the Texas Juvenile Justice Department facility in Corsicana will close as the Legislature directed earlier this year, at least according to Lt. Governor David Dewhurst. He and Joe Straus had earlier suggested reversing course and keeping it open at the behest of legislators from the area, but the Lege had cut the funding and there was never a sound plan to find additional funds to keep it open. The facility, which "first opened in 1887 as an orphanage," "once housed more than 200 youths, [but] held only 65 on Thursday."

More problems for Ken Anderson?
Pam Colloff at Texas Monthly explains why spending 10 days in jail may be the least of Ken Anderson's problems once the new Williamson County DA and Innocence Project attorneys begin reviewing his and John Bradley's old cases. Check out the disdainful comments from Texas Monthly readers on their Facebook page reacting to Anderson's sentence.

How to reverse a conviction for a crime that doesn't exist
Mark Bennett has a post explaining the bad Court of Criminal Appeals precedent that could prevent some defendants convicted of the voided crime of online solicitation of a minor from securing appellate relief. He's also identified a case out of Conroe that could allow for successfully challenging another part of the statute.

'Tradeoffs in cybersecurity'
Via Bruce Schneier, I was interested in reading this fascinating talk by Dan Greer with the same title as this subhed. I liked this pithy line: "All you engineers know that for the engineer, it is 'fast, cheap, reliable: choose two.'  I am here to argue that for policy makers working the cybersecurity beat, it is 'freedom, security, convenience: choose two.'" The whole thing is worth a read.

America has more prisoners than high school teachers
So reported Saki Knafo at the Huffington Post. Indeed, since the numbers Knafo reported exclude those in county jails, he actually understates the situation.

'One out of Five Known Exonerations is for a Crime that Never Happened'

Here's a fascinating tidbit from the latest newsletter of the National Exonerations Registry with the same title as the headline of this post:

'Police Misconduct as a Cause of Wrongful Convictions'

The headline of this post is the title of a new paper by Georgia Sate law prof Russell Covey. The abstract reads:

This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.

Covey focused on the Rampart and Tulia episodes to hone in on causes of wrongful convictions that may not be captured by the sorts of cases that win "actual innocence" claims. He observed that:

The vast majority of the exonerations studied to date occurred in rape cases following DNA testing and murder cases often involving the death penalty. Such cases, comprising a tiny sliver of the criminal justice system workload, are relatively unrepresentative of the vast majority of felony convictions. As a result, and as researchers compiling these datasets acknowledge, the most closely analyzed data on wrongful convictions does not capture a representative sample of the probable distribution of wrongful convictions that occur

That's a good point. Biological evidence only exists to be tested in around 10% of violent crimes and in most older cases was not preserved for testing after the fact. Focusing solely on DNA exonerations disproportionately emphasizes rape and capital murder cases where evidence is most likely to a) exist and b) be preserved, but that's not typical for the vast majority of criminal convictions. And anyway, he argued, false convictions likely occur in different types of cases for different reasons:

as one of the nation’s leading experts on exonerations, Professor Samuel Gross, has frequently emphasized, the primary causes of wrongful convictions are almost certainly crime-specific. That is, the factors that tend to cause wrongful convictions in rape cases are different from those that cause wrongful convictions in murder cases, and different from the causes of wrongful convictions in burglary cases, assault cases, and drug cases. The next generation of research must approach wrongful convictions in a more fine-grained manner.

In particular, argued Covey, "wrongful convictions in the mass exoneration cases are tied together by a single dominant causal factor: police misconduct," fact that distinguishes them from DNA exonerations, the majority of which involved faulty eyewitness identification:

While the leading identified cause of wrongful convictions in past studies of exonerations is witness misidentification, a very different dynamic is at work in the police misconduct cases. Police misconduct generally, and perjury in particular, was the primary cause of wrongful convictions in every Rampart and Tulia case resulting in exonerations. Witness misidentifications played virtually no role in any of the cases.

Bottom line: "the primary 'cause' of false convictions in the Rampart and Tulia scandals was police perjury, some form of which was present in 100% of the cases. ... After police perjury, the most common 'causes' of false convictions were the false confessions generated through police misconduct."

Another notable distinction was "the tendency of exonerees in these cases to plead guilty rather than go to trial confirms what many have long suspected: that the problem of wrongful convictions is not limited to the small number of cases in which innocent defendants unsuccessfully contest their guilt in a jury trial." Wrote Covey, "If there ever was any real doubt that false guilty pleas can occur in large numbers, the Rampart and Tulia data put those doubts to rest, indicating that at least in some types of cases, innocent defendants are far more likely to be convicted through a guilty plea than at trial."

Indeed, Covey found that actual innocence has only a slight effect on whether defendants plea guilty, arguing that it "appears from the data that actual innocence does induce some defendants to refuse a guilty plea and hold out for trial, but that the incentive has only a marginal effect, leading the innocent to contest their cases at trial at an approximately 10% greater rate than those who are actually guilty. Nonetheless, the data underscore that the vast majority of the actually innocent resolve false charges against them by pleading guilty." And when innocent defendants exercised their right to a trial, "those who did and lost paid a heavy price for that decision."

Covey concluded that, "Police misconduct, when it occurs, is a major source of wrongful convictions." The article closed with these observations:

Comparison of the mass exoneration data with prior exoneration studies suggests that two important adjustments to the empirical picture of wrongful convictions may be in order. Although earlier studies of wrongful convictions found only a small number of cases involving guilty pleas, in the mass exoneration cases, guilty pleas provided the main procedural vehicle to criminal conviction. In more than 80% of the combined Rampart and Tulia cases, innocent defendants pleaded guilty. While innocence did seem to provide a marginal incentive to some defendants to reject guilty pleas, actually innocent Rampart exonerees held out for trials only slightly more frequently than their guilty counterparts. The Rampart and Tulia exoneration data thus provides strong reason to suspect that guilty pleas are not insulated from the risk of wrongful convictions.

Consideration of this data should also raise the profile of perjury among the causes of wrongful conviction. Although eyewitness misidentification has received a substantial amount of attention as one of the main identified contributing factors in wrongful convictions, the mass exoneration cases make clear that the “causes” of wrongful convictions vary significantly by crime. These exonerations show that police misconduct is a potentially significant cause of wrongful convictions in its own right. Procedural reforms that reduce the incidence of police misconduct, therefore, should be high on the list of priorities among those working to reduce wrongful convictions.

Video contradicted Garland cop's story of deadly police chase, led to manslaughter charges

For the second time in recent months, a Dallas-area police officer shot someone then filed a false police report about the incident. In October it was a Dallas cop who shot a mentally ill man, then along with his partner filed a false report declaring he'd approached them menacingly with a raised knife. Now, a Garland officer has been charged with manslaughter after an August 31st incident in which he plowed his car into a suspect's at the end of a high-speed chase, falsely claiming the man had rammed his police vehicle. Officer Patrick Tuter fired 41 rounds hitting the man three times, emptying his clip and reloading twice during the barrage.

The DA's office asked for a $10,000 bond, well short of the standard $25,000 bail typical of manslaughter charges in Dallas County. But the judge raised it to $100K, declaring “I’m not concerned about whether he is going to return to court or not. I’m concerned about public safety.” According to the judge, "the only other officer on scene did not fire, and also sought refuge from the bullets behind his patrol car," reported the Dallas News.

According to Mint Press News, "Since 9/11, about 5,000 Americans have been killed by U.S. police officers, which is almost equivalent to the number of U.S. soldiers who have been killed in the line of duty in Iraq." Nearly all of these are deemed justified by Internal Affairs investigators, but for the most part the press and the public must take the word of police flacks in determining what happened.

These episodes to me demonstrate the need for police departments to quickly move to body cams worn by officers that can corroborate police accounts or dispel lies when they dissemble after the fact. "Trust us, we're the government" just isn't good enough in an era when the fact of police "testilying" is well established and video is ubiquitous and cheap. The blog Simple Justice has a running series titled "But for Video" describing episodes where video documented police misconduct that would otherwise have gone undetected.

Dashcams have improved the situation and helped debunk the officer's false report in this case. (There was also a woman in the car with the deceased suspect who likely contradicted his story; press reports so far haven't revealed whether the second officer backed up Tuter's false report.)  But too often the tech malfunctions at just the wrong moment, or the right one from the perspective of officers covering up misconduct. In Cincinnati recently, an officer's dashcam reportedly malfunctioned seconds before he ran over an innocent bystander during a high speed chase. This was the second recent episode where the same officer's dashcam malfunctioned at a critical moment; the first in 2012 involved a high-profile shooting. There are also many instances when dashcams are functioning but simply pointed in the wrong direction.

Body cams and mics for police would provide evidence of misconduct when it happens, protect officers from false accusations, and provide better evidence for prosecutors to use in court. There's little excuse in the 21st century for not deploying such technology as rapidly as budgets will allow. Certainly you could probably outfit the entire Garland Police Department with them for the amount the lawsuit in this case by the victim's family will ultimately cost the taxpayers.

Reactions to Ken Anderson contempt verdict

Over the weekend, Grits offered an assessment of the tepid justice evidenced in former prosecutor and District Judge Ken Anderson's guilty plea and 10-day contempt sentence for withholding evidence in the Michael Morton case. Now, numerous other commenters have weighed in. Some find the outcome historic, since supposedly no prosecutor has ever before gone to jail for withholding evidence. But more common was the suggestion that 10 days was a ridiculously light sentence compared to the quarter century Michael Morton spent in prison. Here's a sampling of various views:

• Defending People (guest post by Robb Fickman)
• Simple Justice
• Eye on Williamson County
• Wonkette
• Ethics Alarms
• Daily Kos
• Robert Cavnar (Huffington Post)
• Dallas Morning News
• Austin Statesman (editorial)
• Austin Statesman (roundup of Facebook comments)
• New York Times
• Kansas City Star
• Tikkun

Notably, this may not be the last of the fallout. The Los Angeles Times reported that:

Williamson County Dist. Atty. Jana Duty agreed to an independent audit of cases Anderson handled as district attorney, as well as some cases handled by his successor, John Bradley, in which Bradley refused requests for post-conviction DNA testing (as he did in the Morton case). The audit will be conducted by the Innocence Project, the Innocence Project of Texas and the Texas Criminal Defense Lawyers Assn.

Big government and the criminal justice system

A blog post today from the conservative blog Red State opens:

The growing role of big government in our lives presents a continual attack on the cherished and hallmark American values of life, liberty and the pursuit of happiness. In no area is this expansion more troubling than the criminal justice system. Actions defined as crimes have proliferated to the point that the average American now inadvertently commits an estimated three felonies a day. This explosion of criminal statutes has little to do with protecting our communities; it is simply another symptom of the expansive reach of big government.

Read the rest here.

Roundup: 'Too Big to Jail' and other stories

Here are several notable news items that caught Grits' eye today that deserve readers' attention:

Obstacles to relief for defendants incarcerated for a voided crime
Mark Bennett suggests four ways defendants convicted of the talking-dirty-to-a-minor statute voided by the Texas Court of Criminal Appeals might receive relief, and also lays out a "nightmare" scenario in which some might remain incarcerated if their attorneys don't fall on their swords and admit incompetence for not challenging the statute's constitutionality. Then he followed up with an additional post identifying seven categories of individuals who'll likely be seeking relief and identifying potential hurdles to their success. Must-read material for those interested in the subject.

'When driving the speed limit is breaking the law'
An only in Texas moment from attorney-blogger Paul Kennedy, following up on a Houston Chronicle report that DPS has begun cracking down on drivers who remain in the left lane after/instead of passing. ... Because, obviously, there are no bigger problems for DPS to confront.

GEO buys Montgomery County mental-health unit
Montgomery County has chosen to sell a forensic mental health facility to the GEO Group, a private prison firm. See related Grits coverage.

Katie Couric interviews Anthony Graves
Katie Couric last week interviewed Anthony Graves and his attorney about his time on death row, the experience of solitary confinement and his ultimate exoneration.

Tables turned in Mineola Swingers case
At Texas Monthly, Michael Hall reports that the chief accuser in the infamous Mineola Swingers case has herself been accused of abuse by two of the children involved in the episode.

No momentum to repeal CA realignment
Despite much hand-wringing over large-scale de-incarceration as part of California's prison "realignment," a new report found stakeholders don't support its repeal "because they know the previous system was failing on almost every dimension."

Wall Street money launderers 'Too Big to Jail'?
I doubt proposed legislation in Congress to regulate money laundering will go anywhere, but I liked the phrase "Too Big to Jail." That about sums it up. See related Grits coverage.

Citizen vigilantes in Michoacan combat cartel the government couldn't
Check out this fascinating and terrible story from the Mexican state of Michoacan in which local vigilantes have, for now, succeeded in driving away the Knights Templar drug cartel where the government had failed.

Telling stories vs. telling the truth: A critique of American crime coverage

Grits has increasingly grown to despise the media trend of treating crime coverage as entertainment. This misbegotten tactic arguably dates back to the era of Bonnie and Clyde, John Dillinger, or perhaps even in some respects to the Hatfields and McCoys. But what in past eras was an occasional dalliance by the media in spectacle-driven reporting has in recent years become the primary focus of crime coverage that now follows an ugly, predictable pattern, hyping dangers beyond reality and in some cases arguably promoting crime more than documenting it.

An excellent Wall Street Journal column last week by Ari Schulman ("What mass killers want - and how to stop them," Nov. 8) honed in on how hype-driven media coverage of mass shootings likely encourages more angry young men to engage in them. He argued that, "There is a growing consensus among researchers that, whether or not the perpetrators are fully aware of it, they are following what has become a ready-made, free-floating template for young men to resolve their rage and express their sense of personal grandiosity." To reduce their number, he asked, "How might journalists and police change their practices to discourage mass shootings? First, they need to do more to deprive the killer of an audience." Among his advice to that end:

• Never publish a shooter's propaganda
• Hide their names and faces
• Don't report on biography or speculate on motive
• Minimize specific and gory details
• No photos or videos of the event
• Talk about the victims but minimize images of grieving families
• Decrease the saturation
• Tell a different story

The truth is, American journalism would greatly improve by applying the same advice to crime reporting generally, perhaps limiting pre-adjudication coverage along the lines of U.K. reportage. Failures of journalism along just these lines help explain why the public thinks crime has increased in recent years even though all available data shows it's at its lowest rates since the 1950s in most parts of the country. The reason: Media today tend to glorify and hype crime for its entertainment value instead of placing it in context and providing useful information. The goal of American crime coverage has become manipulating readers' and viewers' emotions as opposed to increasing their understanding.

Back in June, your correspondent was invited to speak at a national Investigative Reporters and Editors conference at which I addressed this subject, offering similar observations: Back when I was coming up in the journalism field a quarter-century ago, I told them, reporters were taught to write articles along what was described as a reverse pyramid model, with the lede expressing the most important take-away from the story and anecdotes and personal details of individuals involved buried deeper down in the article.

That all changed, though, when the Wall Street Journal famously began publishing stories on their front page, left-hand column that all followed the same format: They began by telling the story of a single individual in a compelling, dramatic fashion that had more in common with fiction writing than how journalism schools taught their students. Then the articles would draw broader conclusions from the anecdote, with contextualizing information buried deeper in the article, often after the jump to an interior page. These articles were powerful for the same reason fiction writing can sometimes tell more truth than non-fiction - we all identify with personal stories and the format encouraged readers to put themselves in the shoes of the person in the featured anecdote.

Today, though, that method has become ubiquitous and virtually every story about crime follows that format, with institutional, cultural and other big-picture analyses relegated to the back end of stories if they're emphasized at all. Start looking for the phenomenon and you'll notice it everywhere. This practice, I told the conference-goers, has limits that most news outlets have come to ignore. Telling stories of individuals may promote a truth but seldom the truth. There are too many other people out there whose truths are ignored by the model and too many institutional dynamics that just don't fit into the framework. The approach encourages the media to pick and choose which stories to tell based on which ones are most likely to push their readers' buttons. The tragic deaths of black girls in Chicago or Houston may not merit a blip on the media radar screen, while the death of a cute white girl from Florida can dominate national media coverage for months.

The rise of this brand of coverage also changed how lawmakers govern in relation to crime and punishment, spurring the creation of countless laws named after dead children or high-profile victims ("Jessica's Law," etc.) that boosted punishments or minimized civil liberties. After this went on for many years, reformers got into the act, too, which is why it took the "Tim Cole Act" to compensate Texas' DNA exonerees or the "Michael Morton Act" to require Texas prosecutors to open up their files. If the media insists on covering crime this way, I told the conferees, then reform advocates can and will manipulate their coverage just like the tuff-on-crime crowd. But really, the journalistic approach does everyone a disservice and distorts the process, no matter which "side" benefits in any given instance.

Mr. Schulman's right that media coverage of mass shootings has become counterproductive and harmful. I just wish more journalists could see that the same is true even of workaday crime reporting. In its rush to tell us compelling stories, journalism is losing its ability to tell us the truth.

Advisory warns against using prosecutors as debt collectors for payday lenders

The Texas District and County Attorneys Association website has posted a notice to prosecutors about using their hot check divisions as a stalking horse for abusive payday lending practices. It reads:

We have been asked by State Rep. Mike Villarreal (D-San Antonio), chairman of the House Committee on Investments and Financial Services, to notify prosecutors of a recent advisory bulletin issued by the Office of the Consumer Credit Commissioner (OCCC) regarding payday lending.  Specifically, the agency is warning payday lenders against using a prosecutor’s hot-check division “simply as a means for collecting on delinquent loans,” especially those secured by post-dated checks from the consumer/borrower.  These lenders’ (alleged mis-)use of the criminal justice system was highlighted in an expose earlier this summer that should serve as a warning to unsuspecting hot-check divisions.  Fortunately, you now have a statement from the state agency regulating these businesses that will back you up if you decline to pursue charges.

The expose mentioned was a story in the Texas Observer by Forrest Wilder* contending that District and County Attorneys offices are "functioning as a debt-collection service for payday lenders." Bexar County ADA Cliff Herberg "said his office won’t prosecute cases in which a payday loan is involved unless there’s a clear case of fraud or deception. 'If it’s for a loan, they’re not going to submit them to a criminal prosecution, it would be for collections purposes only.' However, the collections letters from the Bexar County DA threaten arrest, jail and criminal prosecution." So Mr. Herberg is splitting that particular hair might thin.

Like asset forfeiture, hot check collection produces a slush fund that elected prosecutors can use however they want. According to a TDCAA primer on the subject from 2008, "The statute gives the elected prosecutor sole discretion over expenditures from the hot check fund; the elected is not required to get approval from the commissioners court to use the funds." So there's a tacit economic incentive for prosecutors to look the other way when payday lenders attempt to use them for purposes of debt collection. It helps them grow their slush fund.

Over time, prosecutors have successfully lobbied to use hot-check funds for just about anything (except supplementing the pay of elected prosecutors themselves). "Originally, the legislature envisioned the money would be used to defray the costs directly attributable to the prosecution of hot check writers, but the spending guidelines have expanded over the years," according to the TDCAA primer. Further, TDCAA emphasizes that, "if a defendant has written several hot checks, there is nothing to prohibit you from collecting a fee on each check." So in aggregate, hot check fees can rack up pretty quickly.

Last month, Wilder reported on the new advisory from the Consumer Credit Commission which warned that payday lenders "should not use a district attorney's hot-check division simply as a means for collecting on delinquent loans." The new advisory clarifies that, "if a consumer postdates a check to pay for a payday loan, and that check later bounces, this is not sufficient evidence to show that the consumer committed criminal conduct." Instead, there must be additional evidence proving the consumers' intent to commit a crime. (Such intent is presumed for hot checks dated the same day as the transaction.)

Grits has long believed the law should be changed so that these slush funds - both for hot checks and asset forfeiture - go to counties' general funds instead of remaining under control of elected prosecutors. That would remove even the appearance self serving incentives regarding how those cases are handled, which presently is hard to avoid. Short of that, I'm glad the Consumer Credit Commissioner issued this advisory, but it remains to be seen whether their advice changes front-line behavior of the prosecutors and justices of the peace who handle the bulk of these cases.

*Kudos to Wilder, btw, for his excellent reporting on this topic. Great job, amigo, I'm proud of you.

Ken Anderson's punishment for Brady violations tepid justice

Former Williamson County DA and District Judge Ken Anderson has resigned and yesterday entered into a plea deal that requires him to give up his law license and spend ten days in jail (or nine, depending on which media outlet you believe) for withholding evidence in the Michael Morton case nearly three decades ago, a zillion news outlets have reported. Morton, by contrast, spent a quarter-century in jail because of Anderson's prosecutorial misconduct and his successor, John Bradley's decision to fight DNA testing in the case tooth and nail for years on end. Still, according to KVUE-TV in Austin:

"It's a good day," Morton, who was present in the courtroom, told media after the hearing. "When it began, when I was asked what I wanted, I said, 'The only thing that I want as a baseline is for Ken Anderson to be off the bench and for him to no longer practice law,' and both of those things have happened and more."

According to Innocent Project attorney Barry Scheck, the "more" will be an independent audit into every case prosecuted by Anderson as well as former Williamson County District Attorney John Bradley.

Scheck told media he hopes the entire process will send a message, while expressing continued frustration with Anderson.

"To this very day he still wants to somehow say, 'The system went wrong. I did nothing wrong,'" said Scheck. "That is not an example for anybody, and it is frankly disgraceful."

Mark Godsey at The Huffington Post says this is the first time ever a prosecutor has gone to jail for withholding evidence. Wrote Godsey, "What's newsworthy and novel about today's plea is that a prosecutor was for his transgressions."

A prosecutor going to jail for Brady violations may be a first, but compared to what Morton faced, it's hard to say with a straight face that Anderson was "actually punished in a meaningful way." Losing his bar license is surely a bigger deal than ten days in jail. And at his age, with his judicial pension intact, losing his license wasn't as harsh a punishment as the national media disapprobation he's endured. As justice goes, this outcome represents relatively weak tea compared to the monstrous injustice Michael Morton endured at Anderson's hands.

That said, legislation passed this year bearing Morton's name requires Texas prosecutors going forward to open up their files to defense counsel, a measure that probably would have prevented Morton from ever being convicted if it were in place back in 1986. That new law will produce greater justice than Ken Anderson will ever face. In essence, Michael Morton sacrificed most of his adult life to secure that pivotal reform. When he looks back on this misbegotten episode, that will be the most important part of his legacy, while Ken Anderson's tepid punishment will amount to a footnote.

Trib poll reveals opinions about frequency of wrongful convictions, privacy

The Texas Tribune has been publishing a series based on a recent, statewide poll of 1,200 Texans, with a margin of error of +/- 3.3%, and today Ross Ramsey has a writeup that includes a discussion of findings related to privacy and the death penalty. Unsurprisingly, Texans still strongly support the death penalty (by a 74-20 margin), but more remarkable was data on how often people think wrongful convictions occur in capital cases:

I'm not too surprised by that result. Grits has long held that death-penalty abolitionists who believe finding an innocent person has been executed - whether it's Carlos de Luna, Todd Willingham, or somebody else - will change public attitudes are deluding themselves. Texans recognize that extensive use of the death penalty risks executing an innocent person. For the most part their attitude seems to be, "shit happens." One might lament it, but that doesn't change the facts.

The poll also asked Texans' opinions on which institutions they thought likely to invade their privacy, and remarkably local police came in at about the same rates as President Obama and were less trusted than bankers, of all people:

See the full story for more details and links to crosstabs, for those interested.

Law enforcement misconduct roundup

Grits has noticed a number of recent Texas misconduct cases involving representatives of the criminal justice system in recent days. Here are a few that caught my eye:

• AP: East Texas policeman gets three years in prison
• KWTX-TV: Ex-Texas county attorney sentenced to jail
• AP: East Texas parole officer gets prison for porn
• Dallas News: Dallas officer faces firing after police say he committed insurance fraud
• AP: East Texas police officer sentenced to prison on weapons charges in larger prison gang bust
• AP: Ex-North Texas police officer admits to tipping off dealer
• Amarillo Globe-News: Former [Swisher Co.] Sheriff charged with oppression
• AP: Fort Worth police officer accused of stealing pricey athletic shoes during drug raid
• KDFW-TV: Godley, Mansfield officers accused of excessive force
• Houston Chronicle: Former HPD officer pleads guilty in rape case
• AP: Fort Worth police officer fired for falsifying arrest affidavit
• Tyler Morning Telegraph: Former Smith County Sheriff's deputy pleads guilty to selling drugs out of patrol car
• Lubbock Avalanche Journal: Former Kent County deputy sentenced to 50 years for sexual assault
• KFYO-radio: Former Yoakum County deputy pleads guilty to cocaine distribution charges
• Burleson Star: Two officers fired for claiming on-duty hours never worked, police chief, captain dismissed for allegedly suborning false pay claims
• KENS-TV: Austin police fire officer who shot at man during traffic stop
• KHOU: Conroe officer indicted in shooting death of shoplifter
• Amarillo Globe-News: Woman sues Estelline, former police officers over cash seizure (see related coverage)
• Click2Houston: Former West Columbia Police Chief Michael Parker facing sex charges

Good criminal justice coverage from Texas Observer

There are a couple of interesting stories up at the Texas Observer on topics this blog has covered that merit Grits readers' attention. Check them out:

• Checkpoint Carlitos: Why did DPS set up checkpoints in the Valley?
• Study shows why Houston's Public Defender program is worth the cost

See related, recent Grits posts:

• 'Show me your papers comrade': DPS vehicle checkpoints further degrade Fourth Amendment
• DPS backs of S. Texas roadblocks after dubious justifications debunked
• On the dubious constitutionality of DPS roadblocks
• Harris Co. Public Defender achieves much better results than assigned counsel

MEA CULPA: BTW, after Grits' earlier write-up of the Council of State Governments Justice Center report on the Harris Co. Public Defender program, a couple of people have told me I was remiss not to credit Jessica Tyler as a report author in addition to Tony Fabelo and Carl Reynolds, as apparently she did the bulk of the work on the document. I've never met Ms. Tyler, but if and when I do, the first round is on me. Grits regrets the omission and appreciates her efforts producing the report.

Appellate court: no warrant needed to access personal cell-phone location data from telcos

In an opinion that closely tracked and relied heavily on the US 5th Circuit Court of Appeals case this summer authorizing cell-phone location tracking without a warrant, the Texas 14th Court of Appeals recently said in Barfield v. State that law enforcement needn't secure a warrant for cell-phone tracking data obtained from a phone company. Not a surprising ruling given the Fifth Circuit's stance and Texas courts' acceptance of the spurious "third-party doctrine" - a US Supreme Court-created loophole to the Fourth Amendment manufactured in the '70s. (In New Jersey, where courts have never accepted the third-party doctrine, their state Supreme Court recently found a warrant is required in such cases.) But the opinion shows why the Texas Legislature needs to step in to protect Texans' privacy, since neither federal nor state courts so far seem willing to do so.

Regular readers know state Rep. Bryan Hughes and state Sen. Juan "Chuy" Hinojosa came very close to passing such a bill in the 83rd Texas legislative session (2013); in 2015, let's hope the Lege can push the idea through to the finish line.

Federal prison population growth unsustainable

Via the Urban Institute, check out this graphic demonstrating federal prison population growth over the last three decades:

The federal prison system is almost ten times larger today than in 1980. (Texas prison population increased nearly six-fold over the same period.) The underlying data in the above chart comes from a new Urban Institute report titled, “Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System.” See related testimony from Nancy LaVigne from the Urban Institute's Justice Policy Center at a US Senate Judiciary Committee hearing today, in which she pointed out that, "The high costs of maintaining a growing prisoner population have contributed to the increases in the BOP budget relative to the rest of the DOJ: in FY 2000, BOP took up less than 20 percent of the DOJ budget, but we project that by 2020, it will consume more than 30 percent." While BOP spending remains small compared to, say, federal entitlement programs, the growth rate is still unsustainable, she argued. Two other witnesses (see here and here) attempted to rebut the Urban Institute study, and Grits may have more to say reacting to their comments in a future post.

To a much greater extent, even, than Texas' prisons, federal prison growth has been driven mainly by the drug war. According to testimony (pdf) by Federal Bureau of Prison Director Charles Samuels, Jr.:

The large majority of federal inmates, (177,000 of 219,000) are housed in facilities operated by the Bureau, which have a total rated capacity of just under 130,000 beds. The remaining approximately 42,000 inmates are housed in privately operated prisons and residential reentry centers. Most federal inmates (50 percent) are serving sentences for drug trafficking offenses. The remainder of the population includes inmates convicted of weapons offenses (15 percent), immigration offenses (11 percent), violent offenses (5 percent), fraud and other property offenses (7 percent), and sex offenses (10 percent). The average sentence length for inmates in BOP custody is 9½ years. Approximately 26 percent of the federal in mate population is comprised of non-U.S. citizens.

It's remarkable to notice how different the makeup of state inmates in Texas is compared to federal inmates. By contrast, according to the Texas Department of Criminal Justice's 2012 Statistical Report (pdf), 55.3% of Texas inmates are incarcerated for violent offenses (compared to 5% at the feds), and just 16.7% (compared to 50%) are incarcerated for drug offenses. (The percentage of drug offenders in state jail is higher than full-blown prison: 33% compared to 14.8%; the 16.7% figure includes both.)

The proportion of Texas inmates incarcerated for property/fraud/theft offenses is more than double that in the federal system - 16.1%. Only 1.8% of Texas prisoners are incarcerated for weapons offenses, compared to 15% for the feds.

The average sentence length of inmates on hand in TDCJ in 2012 was higher than the feds - 19.3 years compared to 9.5 years. But that's a bit deceptive because, of those entering Texas prisons (as opposed to "state jails," where the max sentence is 2 years), the average sentence length is 7.9 years, and those leaving Texas prisons on average served just 4.4 years.

The federal system keeps folks in longer because there is no parole, a fact which has generated severe overcrowding. Samuels, Jr. testified that: "System-wide, the Bureau is operating at 36 percent over rated capacity and crowding is of special concern at higher security facilities, with 51 percent crowding at high security facilities and 45 percent at medium security facilities." By contrast, Texas' prisoner numbers recently topped out and have begun to decline, allowing the state to close three prison units in the last two sessions. Added LaVigne, "The BOP anticipates adding over 25,000 beds by 2020, but most of these projects have not yet been approved and would not substantially reduce overcrowding."

Texas may face an overincarceration problem, but things are decidedly worse in the federal system.

Harris County voters barely support jail expansion, if you don't call it that

Harris County jail bonds barely passed in yesterday's election, garnering a slim 456 vote margin. or about .2% of the votes cast - almost close enough to justify a recount. According to the Houston Chronicle, the actual vote total was 112,289 in favor and 111,833 against. A pre-election poll showed that voters may have been swayed because of the (somewhat disingenuous) decision not to mention the word "jail" on the ballot but instead to refer to the measure as funding a "joint inmate processing center." With no organized opposition to the proposal and widespread establishment support, those figures tell me quite a few Harris County voters are tired of paying for endless jail expansion, by whatever name you want to call it, and would prefer for judges and the DA's office to get more serious about diversion programs.

See earlier Grits coverage: "Just don't call it a jail."

MORE: See Government Technology's coverage of computer upgrades that will be necessary for the new joint inmate processing center to function once it's built.

As one of Sheriff Adrian Garcia's chiefs put it during a recent meeting: If voters approve the bond "and we don't have that (jail management system) in place, it's not going to benefit us because it's still going to be paper driven and it's not going to accomplish the goal that we hope it will accomplish."

GT reported that the jail is expected to be built in three years and the new computer systems, which have just been put out to bid, must be functional before then. RELATED(?) Why do many big IT projects fail in government?

Are there ever circumstances when Houston cops are accountable for needless shootings?

Here's another example from The Texas Observer's Emily DePrang of how (even if "why" remains elusive) it's nearly impossible to hold Houston police officers accountable for shooting unarmed people. Her article opened:

On October 24, the Houston Police Department announced the results of its yearlong investigation into the shooting death of Brian Claunch, a mentally ill double amputee killed by an officer last September after refusing to drop a pen. HPD cleared the officer, Matthew Marin, of any wrongdoing.

That may not come as a surprise, since HPD hasn’t found a single police shooting unjustified in at least six years. Between 2007 and 2012, HPD officers fatally shot 109 people and injured another 111. All those shootings were found justified. (For the full story on HPD shootings and beatings, read the Observer investigation here.)

But some expected this case to be different. Claunch was wheelchair-bound and had one arm and one leg. He was definitely aggressive—officers were on the scene because Claunch was agitated, shouting threats and demanding soda and cigarettes—but he was also obviously disabled. HPD reports that Claunch backed an able-bodied officer into a corner and slashed at her with a shiny object, prompting her partner, Matthew Marin, to shoot him. But it’s difficult to visualize Claunch simultaneously moving effectively and posing a serious threat with one arm, even if he had been holding something more deadly than a ballpoint pen. Claunch was also known to be mentally ill; he lived at a small group home for men with mental illness. For all these reasons, some observers expected this shooting to be considered unacceptable.

But it wasn't, at least according to the Houston PD. See the full story for more details.

NSA's mass collection of cell-phone geolocation data occurred without court approval

So reported the Washington Post this week. Though Grits hasn't closely tracked the NSA surveillance debacle, I mention it because the reasoning outlined in the article for why they claimed a court order wasn't necessary have implications for how domestic law enforcement uses geolocation data. Here's how the article ended:

Much of the U.S. government's authority to collect metadata without a warrant is derived from a 1979 Supreme Court ruling over the small-scale collection of call records. But that ruling was made long before the widespread use of cellular technology and the surveillance applications that came along with it. The courts haven't set clear precedents on how location data should be handled given those more current applications.

A July ruling from the United States Court of Appeals for the Fifth Circuit held that individuals don't have a reasonable expectation of privacy for location data collected by phone companies, calling the data the equivalent of a "business record." But the U.S. Court of Appeals for the Third Circuit recently held that police need a warrant to attach a GPS tracker to the vehicle of a suspect. And in a ruling on similar GPS case last year, five Supreme Court Justice suggested that even without a physical trespass, ongoing electronic surveillance may be "an unconstitutional invasion of privacy." But the court did not rule specifically on how the government may use private data collected by modern technology.

So it's problematic that the NSA didn't seek judicial approval before embarking on trials with cell site data. The FISC is supposed to be the judicial oversight for legal issues involving sensitive national security concerns. But it never had an opportunity to weigh in on this case.

Turns out, according to emptywheel, Congressional intelligence oversight committees weren't notified of the project before it began, either. In the wake of the 5th Circuit case mentioned in the story (see Grits' discussion here), it's more important than ever that state legislatures and ultimately Congress address this issue head on.

Time to implement the Barney Fife rule at McLennan DA's office

This is too funny not to share: Readers may recall that McLennan County District Attorney Abel Reyna hired one of John Bradley's lieutenants, Michael Jarrett, to be his First Assistant (his second choice) after he entered office on the back of a demagogic tuff-on-crime campaign, declaring he wanted to model his office on the former Williamson County DA. Yesterday Jarrett, doing his best Barney Fife impersonation, accidentally fired a Glock .40 caliber pistol in the office while he and another prosecutor - both concealed carry licensees - were fooling around with his subordinate's new handgun. Luckily, no one was hurt. Reported the Waco Tribune-Herald:

First Assistant District Attorney Michael Jarrett said he asked fellow prosecutor Landon Ramsay if he could see Ramsay’s new Glock .40-caliber pistol about 2 p.m. Monday.

Jarrett said he asked Ramsay if the gun was loaded and was told it was not. Jarrett pulled back the slide, he said, to double-check if it was loaded and didn’t see a bullet slide into the chamber.

He aimed the gun at a window in Ramsay’s office and pulled the trigger. The bullet shattered the window and struck the brick exterior of the adjacent vacant downtown county jail, Jarrett and McLennan County Chief Sheriff’s Deputy Matt Cawthon said.

No one was injured, which Jarrett said was because he was careful to point the pistol out the window at a brick wall.

“I was being extremely safe,” Jarrett said. “I inspected the gun even after I was told it was not loaded, but it was just an unfortunate accident.”

It's hard for anybody above a certain age to read this story and not think of The Andy Griffith Show's Barney Fife (played brilliantly by the late Don Knotts), who famously was so inept and accident-prone with his firearm that the sheriff would only allow him to carry a single bullet and required him to keep it in his shirt pocket. At least, though, when Fife's weapon famously discharged in the office, he only shot up the floor. Reyna, who normally does not speak to the local newspaper, limiting constituent communications to his Facebook page (which presently doesn't mention the episode), told the Trib's Tommy Witherspoon, “I am thankful that no one was hurt, but it doesn’t change the fact that I am extremely angry about it, and I will deal with it accordingly by disciplinary action or by implementation of policy, or both.”

Apparently shooting a gun in the office at the McLennan DA isn't a firing offense. Hard to believe prosecutors need a "policy" to know not to fire a gun in the office, but if you're going to implement one perhaps it should be the Barney-Fife rule: One bullet apiece, boys, and keep it in your pocket.

MORE: A commenter ("Aunt Bee") pointed out that in municipalities with more than 100,000 population, it's a Class A misdemeanor to fire a handgun within the city limits. Waco's population topped 124K in the 2010 Census. Anyone wanna guess whether the First Assistant DA will be prosecuted under that statute?

On the folly of fingerprints as cell-phone security

Of all the biometrics for Apple to choose to use as security on its new iPhone 5, fingerprints seem like an ill-considered choice that makes phones less secure. After all, to a computer, fingerprints are nothing but ones and zeroes - data like any other transmitted to unlock the system. And unlike passwords, you can't change your fingerprints once someone else has hold of them.

So, in an era when National Security Agency surveillance seems to constantly make headlines, why choose a biometric where the government possesses databases with millions of Americans' fingerprints on file - of everyone who has ever been to jail, applied for security clearances, undergone background checks for licensing, etc.? Even if the government doesn't misuse it, Edward Snowden's example shows such information can potentially walk out the front door, on a thumb drive or otherwise. Indeed, as far back as 2005 this blog warned that "Biometric passwords risk gravest form of identity theft," and that was before the smart-phone boom.

The Texas Department of Public Safety at one point wanted to gather all ten fingerprints from drivers license applicants, but in the end settled for gathering only thumbprints and facial recognition data - information they promptly shared with the federal government through a state fusion center as soon as they began to gather it.  Even without fingerprints of every driver, though, the government has access to enough people's fingerprints to make their use as a security measure decidedly insecure.

First Amendment fouling Texas prosecutors' efforts to criminalize sexual content

Following up on the Court of Criminal Appeals' 9-0 decision to overturn part of Texas' law on online solicitation of a minor as facially unconstitutional, the executive director of the Texas District and County Attorney's Association, Rob Kepple, admitted on their user forum that he helped draft the language nullified unanimously by the high court:

OK, I fess up to being involved in the drafting of this statute. Seemed like a good idea at the time. The thought was that the "intent to gratify" element would take it into constitutional territory. I agree that a teacher sending a kid a book or discussing it could be protected speech, but if the teacher is sending certain passages of 50 Shades of Gray along with other inappropriate messages, seemed like grooming conduct which would support a constitutional prosecution.

If Mark Bennett has his way, Kepple will be issuing more such mea culpas in his future. Still glowing in the wake of his victory at the CCA overturning Sec. 33.021(b) of the Texas Penal Code, he offered up this post arguing that "Sections 33.021(c) and (d) com­bined explic­itly crim­i­nal­ize fan­tasy, for­bid­ding speech—fantasy speech—that is pro­tected by the First Amendment." "You read it here first," he wrote, "Sec­tion 33.021(c), com­bined with Sec­tion 33.021(d), is unconstitutional." Bennett concluded with this admonition for his fellow criminal defense lawyers:

I hate to sound unnec­es­sar­ily arro­gant, but there are very few lawyers in Texas whom I would trust to han­dle these chal­lenges. This is a very spe­cial­ized area of the law, at the inter­sec­tion of the First Amend­ment and crim­i­nal law. Most lawyers thought I was crazy to say that 33.021(b) was uncon­sti­tu­tional; they kept plead­ing those cases even after they knew about the pend­ing appeal in the Texas Court of Crim­i­nal Appeals.

If you’re a lawyer, please don’t try this at home. Call me and we’ll do it together.

Probably good advice. And speaking of advice on the intersection of criminal and First Amendment law, on the Texas prosecutors' user forum this week Brazos County prosecutor John Brick solicited some regarding another statute Bennett has argued is unconstitutional - Texas' improper photography statute. He wrote:

I need help with this scenario – i.e., is this an Improper Photography (21.15 TPC) case or not:

Girl 1 has child with guy. Guy starts dating Girl 2. Girl 1 finds a pic of Girl 2 topless on guy’s phone. Girl 1 posts the topless pic on Facebook & Instagram and calls victim bad names. The elements read that a person commits a crime if the person: photographs or by videotape or electronic means, records, broadcasts, or transmits a visual image of another at a location that is a bathroom (it is in this case) A) without the other person’s consent, and B) with intent to invade the privacy of the other person.

Suspect can also be charged if: knowing the character and content of the pic, they promote it.

Q1: do you think the defendant has to be the one who actually photographs or records, or do you think the statute reads that they can simply transmit a visual image?

Q2: do you think Girl 2 waived her privacy claim by sending it to someone in the first place?

Q3: what the heck does “knowing the character and content” mean? Do we have to prove the same elements as the underlying (lack of consent and intent to invade privacy)?

Kleberg County DA John Hubert replied:

OK, I'll attempt this one..

Q1. simply transmitting is enough.

Q2. No. Girl 2 sent this to Guy 1. If Guy 1 shared it, there might be an issue of whether G2 waived or not. However, if Girl 1 is getting the pics from the guy without his knowledge, I think there is a privacy issue. Also, you have to look at the intent...it is with intent to invade another's privacy...

Q3. OK, "knowing character and content" may be a little more squishy, but I think that a picture of a person in a bathroom with clothes on but doesn't see a person in the bathtub in the background who is showing some skin might be an example of NOT knowing character and content...... but that would be a question for the jury.

Anyone disagree?

Certainly Mark Bennett does. Indeed, a prosecutor from Groesbeck warned Brick that Bennett's First Amendment tonic may sour Hubert's optimistic argument: "Just keep in mind that the Fourth Court has ruled this statute facially unconstitutional. Coupled with the CCA ruling ... striking down a portion of the online solicitation statue on nearly identical reasoning, I would be cautious here." (See Grits' post from September on the Fourth Court of Appeals' opinion.) The improper photography statute now appears ripe for consideration by the Court of Criminal Appeals since the First Court of Appeals earlier upheld its constitutionality, meaning the law is being interpreted differently in different Texas jurisdictions.

Bottom line: Now that Bennett has busted this First Amendment nut open at the CCA, a number of similarly themed statutes criminalizing possession or transmission of sexual content could well fall like pecans in autumn. And our friends at the prosecutors' association may have more fessing up to do.

Compensating the wrongly convicted: CA vs. TX

California has passed a statute providing compensation to wrongly convicted defendants who've been exonerated, though at a substantially lower rate than Texas, which boosted its compensation rates in 2009.

Why 'privacy is a conservative cause'

Sentiments like these from conservative direct-mail guru Richard Viguerie on Politico (10-31) are among the reasons Grits thinks America may be on the verge of a Fourth Amendment revival. In a column at Politico, Viguerie declared that:

Privacy used to be a dirty word among many conservatives because the liberal Warren Court of the 1960s used concepts such as “penumbras” – words not expressly found in the Constitution — to overturn state laws that protected traditional moral precepts or valid law enforcement.

In recent years, however, beginning with the passage of the USA Patriot Act during the George W. Bush years, but expanded seemingly without limit under Barack Obama, conservatives have awakened to the threat of the massive surveillance state. ...

Even Republican hawks are turning. Some of the same lawmakers who helped usher in the surveillance state, including the co-author of the Patriot Act, Rep. Jim Sensenbrenner (R.-Wis.), are pushing back with their own legislation.

So, what’s changed?

With the scandal-plagued IRS mucking around in our health care decisions and Edward Snowden’s revelations about the NSA snooping into our “private” communications, the constitutional stakes are simply much higher.

The NSA scandal, moreover, strongly suggests that intelligence officials can and do lie to get around the Fourth Amendment legal limits and the limply enforced limits imposed by the Patriot Act and the Foreign Intelligence Surveillance Act (FISA), raising the privacy issue to a new level.

The recent scandals also dovetail with the rising influence of limited government constitutional conservatives and their quest to break with the George W. Bush era of Big Government and Big Surveillance.

The conservative icon concluded by extending his critique beyond government to corporate America:

Privacy used to be the exclusive realm of libertarians and the left, but the world that Edward Snowden unmasked has propelled conservatives to push forward on privacy.

It is time for conservatives to throw off the influence of surveillance state advocates, make common cause with libertarians and receptive liberals, and take the privacy fight a step further to rein in companies that – wittingly or unwittingly – have become the government’s partners in the massive surveillance state.

Shaky science, un-recorded confession form basis of El Paso habeas writ

Jordan Smith at the Austin Chronicle has an excellent new story out ("Science goes to court," Nov. 1) regarding a habeas writ challenging a child-murder conviction out of El Paso. The defendant is seeking relief based on Texas' new law, authored this year by state Sen. John Whitmire and Rep. Sylvester Turner, allowing relief when new scientific developments contradict expert testimony at trial. (In this interest of full disclosure, this was legislation your correspondent helped promote on behalf of my employers at the Innocence Project of Texas.)

As is likely to be the case in much of the litigation surrounding this new habeas provision, the debate centers on whether the defendant's writ relies on new science or evidence that should have been available at the time of trial - in this case biomechanical modeling that has debunked many of the underlying premises of "shaken baby syndrome" and other expert testimony about child trauma. Wrote Smith:

Biomechanics has long been relied on for injury prevention and repair – the development of air bags in vehicles, of helmets to protect football players' heads, of replacement hips and knees – but only recently has biomechanics been incorporated into a criminal law context, to describe with scientific certainty the force needed to cause specific injury. Biomechanical engineering is pivotal to the reconsideration of cases of so-called "shaken baby syndrome," or SBS, and has demonstrated that simple shaking by an adult cannot create the force necessary to kill a child.

"Many if not most non-physicians assume that physicians, skilled in the art of medicine, must have particular knowledge of injury mechanisms. This assumption is wrong," John Plunkett, a veteran pathologist and expert in the diagnosis of child injuries who has been a vocal critic of SBS, wrote in an affidavit filed along with a new appeal in Avila's case. For the most part, physicians, such as Raschbaum, "need not know or apply injury mechanics if they are responsible for diagnosis and treatment," Plunkett continued. "However, if a physician ventures from diagnosis and treatment to speculation of the ultimate force, stress, or energy required to cause injury, he/she must understand mechanics ... and perform or refer to the appropriate experiments."

At the time of [Rigoberto] Avila's trial, and first appeals, biomechanics was not being applied to criminal cases involving child abdominal injuries, a leading cause of death in children, Plunkett and other experts say. Now, Plunkett wrote, such an analysis prior to deciding whether an injury is criminal or not would be "mandatory."

The argument that Avila's conviction was based on faulty, pseudo-scientific conclusions is at the heart of a new appeal filed in September. The appeal cites passage this spring by state lawmakers of Texas' first-in-the-nation law to allow for appeals based upon relevant and newly ascertainable, or evolved, science that contradicts evidence used at trial. The new statute took effect Sept. 1, and is an acknowledgment that criminal law – rigid and, importantly, wedded to finality – must evolve to keep pace with scientific advances.

The principal dispute, Smith reported, surrounds whether biomechanical research regarding child trauma is new science or merely old science re-packaged:

El Paso District Attorney Jaime Esparza does not agree that Avila's case falls under the new law. In a motion filed in October on Esparza's behalf, prosecutor Tom Darnold argues that there is nothing new about the science involved in the case that would warrant review. "Avila acknowledges that the relevant scientific knowledge, that is, the physics of impacts, dates back to Newton and has not undergone significant change since Avila filed his first writ application" 10 years ago, reads a motion to dismiss the case. And even "Reimann notes [in his affidavit] that his analysis of these types of issues is 'based on introductory physics normally presented in a general physics course required for biological, health-science, and pre-med students,'" Darnold noted. As such, the "materials Avila has submitted ... defeat his claim that the scientific knowledge, or the method on which that relevant scientific knowledge is based, has changed since the time he filed his first writ application." And the fact that biomechanics was understood and practiced at the time Avila was tried means only that his lawyers didn't exercise "reasonable diligence" in seeking out that knowledge to present at trial. The plain language of the new law, he notes, "does not authorize the consideration of the merits of a subsequent writ ... based on scientific knowledge that was previously available but not commonly used, or based on scientific knowledge that was previously available but simply was not sought out by the doctors or attorneys in the case."

While it's true that biomechanics takes basic Newtonian physics – the law of bodies in motion – and applies it to living tissues, there is nothing at all static about the science involved, says Peter Stephens, a retired forensic pathologist. And when he hears people dismiss the science as not new or say something like, "'We've moved beyond Newtonian physics now,' most of us just roll our eyes." The fact of the matter, says Stephens, is that using biomechanics as a diagnostic tool for childhood injury is fairly cutting-edge – particularly when it comes to assessing abdominal injuries, like that which ultimately killed Nicholas.

The whole "shaken baby syndrome" (SBS) fiasco - where a field of expert testimony arose in the 1970s to prosecute cases without the underlying science having been tested (see background here) - was one of the brands of junk science under consideration when this new legislation was passed. Grits has no direct knowledge about when new biomechanical modeling that debunked SBS was applied to other types of injuries like the ones in this case. But the idea that the claim should be denied because the physics of impacts "dates back to Newton" is a laughable stance that ignores the history of SBS and the belated rise of biomechanical modeling that has only recently countered it.

Indeed, later this month in Dallas a "World Conference on Infant Head Trauma" will convene to evaluate the evolving status of science in this area. According to the event's website, "The World Congress on Infant Head Trauma brings together international speakers to find common ground and debate controversial topics in pediatric forensic pathology. This unique congress focuses primarily on the pathology and etiology of head trauma (and its mimics) and not the overarching issue of child abuse." This is still very much an evolving field.

In the wake of the new law, not to mention the National Academy of Sciences report in 2009 calling into question an array of non-scientific forensics, we're going to see more habeas writs focused on the question of "what did science know and when did it know it?" That's as it should be.

The case also highlights the drawbacks of failing to record custodial police interrogations. (Regular readers will recall that requiring such interrogations to be recorded is the final, un-enacted recommendation of Texas' Timothy Cole Advisory Panel on Wrongful Convictions.) Here's how Smith described the circumstances of the disputed confession:

Around 11pm that night, as Raschbaum worked on Nicholas [the child victim] at the hospital, Avila was taken to the El Paso PD to give a statement to Det. Tony Tabullo, then a 24-year veteran of the force. Avila was already a suspect in the case, and around 11:30pm Tabullo advised him of his rights before beginning the interview. At roughly 2:10am, Avila signed a statement wherein he detailed that he had been watching TV when Dylan told him that Nicholas wasn't breathing; per Tabullo's instructions, Avila read and placed his initials before and after each paragraph of the statement, and next to the time and date – 23 separate places in all – before signing off on the document.

What happened next is disputed. Accord­ing to Tabullo, after he took Avila's statement he found out that Polaroid photos of Nicholas' body had been brought to the police station. Those photos, he testified, revealed a large area of bruising across Nicholas' chest (the bruised area was seven inches by three inches, according to the autopsy report) that resembled a shoe print. Armed with this information, Tabullo said, he returned to Avila and confronted him with what he considered evidence that Avila had stomped on the baby's chest. Tabullo asked Avila if he could see his shoe; Avila complied. "Well, I asked him," after inspecting Avila's sneaker, "do you want to tell me the truth?" Tabullo testified. "He said yes. He shed a few tears and started telling me the truth."

The truth, according to a second statement Tabullo said Avila offered, hours later, at 5:46am, was that while Avila was watching the basketball game at Macias' apartment he got up and went to the bedroom where Nicholas was alone. "I saw him laying on the floor," reads the second statement. "I don't know what came over me, but I walked over to him and stamped on him with my right foot." Avila then allegedly picked Nicholas up and brought him into the living room where Dylan shook Nicholas to try to "wake him up" and then hit him on the chest with a magazine. Avila called 911. Why had he done it? According to the second statement, it was because he was "jealous" that Macias paid so much attention to the toddler.

According to Avila, Tabullo fabricated that second statement. He said that when Tabullo returned to the interview room where he'd been left after making his first statement, Tabullo confronted him with the photos of the alleged shoe-print bruise. Avila said he knew nothing about the injury, he testified in court. Tabullo told Avila he would have to wait a while longer in an interview room. Tired, Avila asked if he could leave; no, not until Tabullo was "done with you," he testified. Avila was tired and was falling asleep as they talked, he recalled. "I said, 'Is it okay if I go to sleep,' and he says, 'Yes,'" Avila testified. "He goes, 'I just need to make some changes on the statement.' He says, 'If you want ... I'll wake you up when I'm done.'" And that, said Avila, is what he did. When Tabullo woke him up later, Avila said, he was told only that he needed to sign his statement again, and that he could then leave. Avila says he did as he was told – without ever reading the new statement. He was then arrested.

Although there is certainly reason to suspect the validity of the second statement – it was conducted by Tabullo alone and was not recorded, and unlike the first statement, Avila did not initial any of the paragraphs, though Tabullo said that's because Avila told him that he trusted the detective and didn't need to go through that – the damage was done.

How much better would it have been for everyone if Avila's interrogation had been recorded? Without a recording no one besides the two men involved can know for sure what happened in that interrogation room. One of them is lying and it's impossible to know who. Maybe in 2015 the Texas Legislature will finish the tasks assigned it by the Tim Cole panel and finally require recording of custodial interrogations. Otherwise, there's little doubt similar situations will continue to arise, calling convictions into question and muddying the waters for appellate courts trying to suss out the mess after the fact.