Silence on Twin Peaks massacre may 'blacken' reputation of Waco justice

Since the Twin Peaks massacre in May, officials in Waco have mostly succeeded in keeping biker-related criminal cases out of the press. But the silence has grown deafening, prompting AP, the Atlantic, and even the Waco Tribune-Herald opinion editor to call for transparency and lifting an ill-conceived gag order.  The Texas Criminal Defense Lawyers Association last week filed a complaint with the State Commission on Judicial Conduct against the Justice of the Peace who set million dollar bails for the 177 people arrested that day. More than 2/3 of those arrested that day had no criminal record, reported AP. Trib opinion editor Bill Whitaker fears that the official silence, based on a gag order which only applies to one case, "has the power to blacken for decades the reputation of American justice in Waco. It may already be too late."

To my mind, the Twin Peaks episode couldn't worsen Grits' view of Waco justice, but it surely confirms it.

Related:

• Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL
• Why won't authorities say how many in Twin Peaks massacre were shot by cops?
• Veteran Waco cop 'randomly' chosen foreman of Twin Peaks grand jury
• Rigged game in Waco

Texas prison population decline modest, however you measure it

At the Texas Tribune, Julie McCullough has an article titled "Dip in Texas prison population continues trend." In it, she uses numbers from the DOJ to say that:

the state's prison population fell by more than 2,200 inmates, or 1.3 percent, between 2013 and 2014, according to new data from the U.S. Bureau of Justice Statistics. The decline was slightly larger than the national drop of one percent.

When 2014 ended, 166,043 prisoners were in TDCJ custody, the lowest number since 2002. It was the state's fourth largest annual decline in more than 35 years. (The largest drop came in 2012, when the population fell by nearly 6,000 prisoners from 2011.)

The small downward shift continues a trend that began in 2010, when the number of men and women held in Texas prisons peaked at 173,649.

Those numbers differ from those in TDCJ Annual Statistical Reports (available here).  Here are the annual TDCJ "on hand" population totals as of Aug. 31 from '08-'14:

2008: 156,126
2009: 155,076
2010: 154,795
2011: 156,522
2012: 152,303
2013: 150,784
2014: 150,361

Comparing these data to the chart in this post, one sees that the parole board reacted to the state's highest prison population of all time in 2011 by boosting the total number of prisoners released in 2012 by a whopping 9%. That was the year the Trib said witnessed the "largest annual decline in more than 35 years," according to federal data.

Bottom line: According to TDCJ, 2014's prisoner number was a .3% reduction from 2013 and about a 4% drop from the 2011 high. The feds say Texas recorded a 1.3% drop last year, and a 4.4% drop from our peak, which they place a year earlier than TDCJ does. Either way you look at it, these reductions remain on the low side, in the nanoreform range.

Grits has parsed the differences between TDCJ and DOJ numbers in detail in the past, for those interested. Bottom line, TDCJ is counting the number of prisoners "on hand" while the federal number counts prisoners based on their legal status at the time of custody, not whether they've formally entered the prison system or not. So, for example, a prisoner convicted in district court and sentenced to TDCJ may sit in the county jail for three or four weeks awaiting transfer. Texas counts her as a county jail inmate; the feds would consider her a state prisoner. These are differences in definitions. Neither is right nor wrong, they just count different things, as though one were measuring an object in yards and also in meters.

If Grits were a betting man, in the near term I'd expect a continued, modest decline, particularly among the state jail felony population, in part due to the adjustment for inflation of property crime thresholds and the creation of diligent participation credits for state jail inmates (see here and here), and in part because crime remains at historic lows. It's possible Texas could even close another unit or two.

Going much beyond that, however, will require additional legislation reforms and further state investments in treatment, supervision, and mental health services. Whether that will happen is anyone's guess. All one can say for sure is that it can't happen before 2017.

Should police get to review video before Internal Affairs interviews?

The policy of allowing police officers to view video from incidents involving complaints against them before being interviewed by Internal Affairs drew fire this week from an editorial in the Corpus Christi Caller-Times (9/24). which opened:

There are compelling arguments for and not many against letting police officers see video and hear audio before being interviewed by internal affairs. This is a new policy included in the contract approved earlier this month between the city and the police union, but it also is a national trend.

Perhaps the only meaningful argument against this policy just happens to be the big one — that it gives officers a special privilege not extended to persons of interest in a police investigation.

It's important to note the distinction between an internal affairs inquiry and a criminal investigation. An internal affairs investigation focuses on officers' behavior as employees answerable to their employer and to the public. That's a marked difference from an investigation into whether officers violated the law while on the job and should be charged with a crime.

But what if an officer ends up being investigated in both contexts? The officer has had the opportunity to get his or her story straight based on the video/audio evidence he or she was allowed to see and hear.

Needless to say, that's not an opportunity extended to civilians questioned in criminal investigations — even those who haven't attained the status of person of interest. The potential discrepancies between their stories and facts not revealed to them before being questioned, including video not shown to them, are considered part of the evidence-gathering — a valuable part because discrepancies can make someone appear guilty. Discrepancies can be portrayed as lies because sometimes they are.

That so-called game of gotcha is exactly what the proponents of the new video preview policy for officers say shouldn't be part of the internal affairs process. They want a level of fairness that isn't extended to civilians questioned by police.

The opinion piece concluded by decrying a similar provision in Texas' new body cam legislation, whose regulation of camera use Grits has also criticized.

A new state law providing grants for body cameras includes a provision that officers view a video before giving a statement. The law could be touted as an all-around victory for transparency. It encourages more body cameras and therefore more video evidence, and it is the pinnacle of openness with the involved officers.

But defense attorneys whose clients are civilians are duty-bound to ask, why them and not us? It doesn't take a legal scholar or an oracle to foresee one of these defense attorneys winning a Miranda-like victory at the Supreme Court level someday based on that question. "They didn't show me the video" could supplant "they didn't read me my rights" as a prosecution-killer.

The arguments in favor of police having this privilege are no different for anyone else.

Unfortunately, the paper's disapprobation comes too little, too late. The city and police union have already adopted the language governing bodycams in the recently signed meet and confer agreement, which would have benefited from media scrutiny as it was happening instead of after the fact. At this point, the Legislature could take up the matter before the City of Corpus gets the chance to revisit the issue, which can't happen until the meet-and-confer agreement expires.

Odds and ends from the Texas Judicial Council

The Texas Judicial Council met last week. See:

• Their director's report;
• A report to the Council from the Indigent Defense Commission;
• A list of bills supported by the Judicial Council which passed last spring;
• A list of all judiciary-related bills sent by the Legislature to the Governor;
• Texas data and policy discussions regarding pretrial detention and bail reform; 
• An overview of the current status of the Tim Cole Exoneration Review Commission, on which your correspondent because of his job is an advisory member. The first meeting will happen in October.

Baker's dozen advocacy groups detail post-Sandra Bland reform agenda

Check out a letter from the Texas Criminal Justice Coalition and a dozen allied groups to DPS Col. Steve McCraw and the Waller County Sheriff calling on them to:

• Ensure use of force is only applied as a last resort
• End racial profiling
• Implement pre-booking diversion
• End arrests for non-jailable offenses
• Reform the bail system
• Provide sufficient defendants attorneys at magistration
• Improve mental health training for law enforcement and jailers to prevent suicide
• Better fund the Texas Commission on Jail Standards to inspect more jails more often

Obviously, different suggestions apply to one or the other of those two recipients. See the full letter for more detail.

Visitation, risk assessment, fines, indigency, and prosecutorial overreach

Here are a few items which deserve readers' attention even if Grits hasn't had time to focus on them:

Travis Jail may lose exemption from in-person visitation requirement
"The Texas Commission on Jail Standards is re-evaluating its decision to grant the Travis County sheriff’s office an exemption from a new state law requiring jails to allow in-person visitation for inmates’ friends and family," reported the Austin Statesman. "The new law ... exempted counties that had already spent a significant amount implementing a video-only system," but our friends at Grassroots Leadership are "questioning whether the county should have been granted the exemption because the Securus contract said that the company, not the taxpayers, was on the hook for the program."

Risk Assessment and Criminal Sentencing
Whenever Jennifer Skeem writes on risk assessment, I learn something. So her new paper with John Monahan, "Risk Assessment and Criminal Sentencing," gets added to Grits' "to read" list.

Fines, court costs, and the 'cycle of indigency'
The Texas Supreme Court yesterday heard a case which may determine whether court fees can be assessed against indigent clients. The case is on the civil side (a divorce proceeding), but "The case is being closely watched by legal advocates because it is the civil court bookend to its criminal counterpart: the role of fines for minor crimes that keep the poor locked in a cycle of indigency."

State asked to pay costs for prosecutorial overreach in McLennan County
McLennan County wants the Governor's office to cover costs stemming from the trumped up prosecutions in the Twin Peaks massacre. First things first, they should be required to disclose how many of the victims were shot by police and how many were shot by bikers. Given how local leaders have behaved throughout this mess, there should be some explicit accountability measures attached to any money given.

Forensic commission re-sets DNA mixture hearing
The Forensic Science Commission's committee to investigate the DNA mixture issue will meet October 1st to address the issues they didn't get to last week in Dallas for lack of a quorum. See the agenda here, and prior Grits coverage. I'm still not sure yet this will end up amounting to much. But it's a fascinating issue (to me, anyway) on several fronts, from the role of subjectivity in science, to the relationship between basic research and the practices of working analysts at the forensic lab bench, to the role of judges (inadequately) vetting science for the courtroom.

On the etymology of mass incarceration
From FiveThirtyEight. See a prior, related Grits post.

The 'war on police' that wasn't
After Lt. Gov. Dan Patrick declared there exists a "war on police," it was good to see a several rebuttals in the media of this odd, fact-free meme beyond Radley Balko's initial retort. Regardless, it's increasingly clear that this is a debate wherein facts don't matter. One can lament that situation, but lamentations won't change it. Even so, it's worth repeating at least once more: The "war on police" is not a thing.

Deitch on jail safety, oversight

Michele Deitch, a lecturer at the LBJ School of Public Affairs and long-time observer and participant in Texas criminal justice politics, spoke at yesterday's Senate Criminal Justice Committee hearing on jail safety, mental health treatment, and suicide prevention. But Grits would have liked to hear her expand on the themes she quickly rattled off to the committee, so I asked Michele if I could reprint her full written testimony. She graciously assented, so find it published in full below the jump.

Senate committee to discuss jail safety

The Texas Senate Criminal Justice Committee this morning will meet to discuss jail safety and suicide in the wake of Sandra Bland's untimely death. Here's the agenda listing invited testimony; they'll also hear public testimony. Go here to watch the hearing.

Grits has to work and can't attend, but I'll try to listen in.

RELATED: 700 inmates took ill over the weekend at the El Paso County Jail.

MORE: I've had this hearing on in the background while working, not paying close attention, but perked up when Chairman John Whitmire said the Lt. Governor asked him to work on developing a list of ten "dos and donts" to teach the public about how to deal with police officers at traffic stops. The Lieutenant Governor wants to train the public, he said, on the assumption that officers already get training on how to deal with the public. The chairman asked Kim Vickers of the Texas Commission on Law Enforcement if his agency would be the right one to work on that. Vickers replied that it would be an excellent job for the public schools.

AND MORE:  According to the Department of State Health Services, about 76,000 inmates who require mental health services are booked into jail each year, some of them many times. About two thirds of them are already accessing mental health services in the free world before they're arrested.

SEE ALSO: Coverage from the Texas Tribune, the Austin Statesman, KVUE-TV (Austin), KLBK-TV (Abilene), and (behind paywall) the Express-News, Chuck Lindell at the Statesman quoted Tony Fabelo getting off a couple of strong points:

Among the invited witnesses was Tony Fabelo, research director for the Council of State Governments’ Justice Center, who pointed out a large hole in the oversight system. While county jails are required by law to screen new prisoners for mental health problems, city jails do not, he said.

“If you are looking at a policy to identify them early to connect them to treatment, you are missing a gigantic step,” he said.

Fabelo praised a Texas law that requires prisoners identified as having a potential mental illness to receive a clinical assessment, with the results sent to a judge to decide if jail release is appropriate.

The problem, he said, is that there is no record of any such hearings being held.

“Nobody knows what (that type of) hearing is. Nobody,” Fabelo said.

Fabelo also praised mental-health diversion programs in Bexar County, reported Mike Ware in the Express-News:

said the Bexar County program is proving successful at removing thousands of offenders who otherwise would clog jail cells. New assessment and screening procedures took effect Sept. 1 that could lead to even better outcomes, he said.

Under Bexar County’s program, law enforcement officers screen people when they’re arrested to determine if they need to go to jail or a treatment center. If they go to jail and exhibit signs of mental instability, they again are assessed to measure whether they are suicidal or need to be placed in a mental health hospital.

AND MORE: See Deitch on jail safety and oversight

The arithmetic of de-incarceration: TDCJ edition

For long-term de-incarceration strategies to work, in the near term, while crime is low, prisons must release more inmates than they receive. Here are the Texas Department of Criminal Justice's aggregate receive/release figures from FY 2007-2014, the most recent full year available from the TDCJ Annual Statistical Reports.

Since Texas' much-ballyhooed 2007 probation reforms (which arguably impacted parole revocation rates more than probation's), Texas has only released more prisoners than it received two years - 2012 and 2013.

Over this period, the total number of inmates on hand declined from 152,661 to 150,361, but not until after briefly bulging past 156,000 in 2008.

In a nutshell, the push for de-incarceration is about driving that red curve upward on the Y axis and driving the blue curve down, focusing in particular on situations where that can be accomplished without compromising public safety. Simple, right?

Labs must correct wrong DNA mixture analyses, learn when not to analyze 'crap'

Yesterday for work I attended a Forensic Science Commission committee meeting in Dallas on DNA mixtures where the agenda had suggested they'd be parsing prosecutor disclosure obligations and mapping out a path toward reviewing old cases. Instead, the committee couldn't field a quorum, so four scientists brought in to advise them were left to field a lengthy panel-discussion/Q&A which clarified some issues and on others, only emphasized how muddy much of this remains.

Terri Langford at the Texas Tribune was the only reporter there, here's her story. In general, she correctly summarized:

experts tried to temper the expectations about DNA testing that were built over more than a decade.
 
"One of the problems was DNA was called the gold standard," Bruce Budowle, director of the University of Texas Health Science Center's Institute of Applied Genetics, said. "Big mistake."

Budowle said DNA deserved gold-standard status when it came to a single DNA sample compared to a single suspect, or even in rape kits where there are two samples and one (the woman's) is known. But when analyzing mixed DNA samples where no one is definitively known, or even where labs can't tell precisely how many DNA contributors there are, analysts engage in interpretation which has not always been informed by best practices. Cutting-edge science takes too many years to trickle down from the research labs to the crime-lab work bench, the panelists repeatedly emphasized.

Budowle said the 2009 National Academy of Sciences report "gave DNA a pass" and it shouldn't have - interpretation of DNA mixtures has a subjective human element just like other comparative forensics.

We learned a bit more about how all this came up: When Galveston DA Jack Roady asked for DNA results to be reinterpreted in one of his cases, the probability the DNA matched their defendant went from more than one in a billion to one in 38.

But that was the FBI lab, having already corrected their method.* Yesterday we learned more about recent changes in DPS' DNA mixture interpretations. Again, from Langford:

Crime labs have recently adopted the new “mixed DNA” standard. The DPS switched to it on Aug. 10. The move has prompted prosecutors like [Inger] Chandler to resend evidence in pending cases to the lab to have the data analyzed using the new standard. In Houston's Harris County, that's about 500 pending cases where DNA evidence will be introduced at trial.

In addition, DAs are notifying defendants who are already convicted about the new standard. For example, Harris County prosecutors have already notified those convicted of capital murder and awaiting execution. It is not known how many of the 253 inmates on Texas’ death row were convicted with mixed DNA. Of the 253 inmates on Texas death row, 90 are from Harris County.

The new standard at DPS deserves further elaboration because the expert panelists universally agreed that the old method was wrong and improperly interpreted results.

After yesterday, I understood for the first time (perhaps it was said before and didn't penetrate my notes/consciousness/thick skull) that DPS' DNA labs had not changed their protocols until this issue came up while your correspondent was on vacation last month. And the details of the change were significant.

First, a bit of background. DNA testing looks at two metrics on X and Y axes: Whether alleles are present at various loci, and the quantity of DNA available for testing at that spot. (The latter is complicated by allele drop-in, drop-out, and stacking, terms I'm only beginning to understand.) When examining the peak height of DNA quantity on the test results, DPS' old method did not impose a "stochastic" threshold, which as near as I can tell is akin to the mathematical sin of interpreting a poll without ensuring a random sample.  (The word "stochastic" was tossed around blithely as though everyone knew what it meant.) Basically, DPS did not discard data which did not appear in sufficient quantity; their new threshold is more than triple the old one.

That new methodology could change probability ratios for quite a few other cases, the panel predicted. One expert showed slides demonstrating how four different calculation methods could generate wildly different results, to my mind calling into question how accurate any of them are if they're all considered valid. Applying the stochastic threshold in one real-world case which he included as an example reduced the probability of a match from one in 1.40 x 10⁹ to one in 38.6. You can see where a jury might view those numbers differently.

Not every calculation will change that much and some will change in the other direction. The application of an improper statistical method generates all types of error, not just those which benefit defendants. There may be folks who were excluded that become undetermined, or undetermined samples may become suspects when they're recalculated. The panel seemed to doubt there were examples where a positive association would flip all the way to excluded, but acknowledged it was mathematically possible.

DPS has identified nearly 25,000 cases where they've analyzed DNA mixtures. Since they typically represent about half the state's caseload, it was estimated, the total statewide may be double that when it's all said and done. Not all of those are problematic and in some cases the evidence wasn't used in court. But somebody has to check. Ch. 64 of the Code of Criminal Procedure grants a right to counsel for purposes of seeking a DNA test, including when, "although previously subjected to DNA testing, [the evidence] can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test." So there's a certain inevitability about the need to recalculate those numbers.

Making the situation even more complex, next year DPS will abandon the updated method and shift to "probabilistic genotyping," which has the benefit of using more of the DNA data but asks a mathematically different question than the old method. Instead of calculating how many people in the population share DNA traits with the sample, the new method calculates, e.g., how likely it is that two patterns match the suspects compared to any other two random people.

That's a subtle difference, but it means the new DPS method is not a direct refutation of the old one, prosecutors exasperatedly realized upon questioning the panel. Going forward, it's probably best to shift to probabilistic genotyping until something else comes along, they were told. For older cases, though,labs would probably need to calculate both. That stickies the wicket quite a bit - they can't just wait and issue results under the new method in old cases, as some labs had been advising. They'll have to recalculate them using the new stochastic threshold.

Another interesting side note: the old method always generates the same result. Because of statistical modeling, probabilistic genotyping will get a different result every time (presumably within a valid range of error). That made me wonder about the wisdom of moving to a system where results are not entirely replicable. That's an issue for the courts, one supposes, which will ultimately need to decide which approach they prefer. All this will end up before the Texas Court of Criminal Appeals sooner than later, most observers agreed.

Even when labs shift to a new method, though, the software implementing these models cannot be treated as a black box, the panel emphasized. There's inherently an interpretation element and without understanding the different statistical methodologies, they warned, crime labs could still get into trouble, a likelihood which became increasingly apparent as the hours-long session progressed. "All models are wrong but some are useful," one panelist quipped. Each are a different tool and one uses different tools for different things.

One final takeaway: Labs not only need to update their methods for performing statistical calculations, just as importantly they need to create standards for when they should make no calculation at all. One panelist gave an anecdote from a 2013 study: 108 labs were given a sample he'd created using four DNA sources, but for context he told them the names of three people, only two of whom were actual sources. Amazingly, 75 percent of labs mistakenly said the sample came from three people and included the person who wasn't a source. Only 20 percent said they couldn't make a calculation. If that's not a red flag, I don't know what is!

Budowle, who for 26 years worked for the FBI and was their lead expert on these topics, said that when there are too many DNA sources to make an interpretation, as is increasingly the case with touch DNA samples, the scientific term for what one sees in the test results is "crap." They'd operated in the past on the assumption that examiners could recognize crap, he said, but it's becoming apparent guidance needs to be developed because people are busily applying these statistical  models in invalid and problematic ways. All the other panelists agreed.

Finally, everyone agreed, this is not at all  just a Texas issue but is a national and even international problem. Everywhere DNA analysis is used for crime fighting, courts and labs eventually must grapple with these issues, and many jurisdictions have yet to do so. Texas crime labs weren't acting in bad faith on this; this isn't a drama with a villain. As science advanced, past errors became known, it's nothing nefarious, however problematic it may be for the justice system to have replied on unproven science. Texas is just confronting the issue first in large part because of leadership from the Forensic Science Commission. Their executive director Lynn Garcia has ably pieced together stakeholders and generated a meaningful, high-level conversation among decision makers, even if few decisions have been made yet.

The committee will meet again before the next Forensic Science Commission meeting Oct. 2, perhaps the day before, to take up the agenda they didn't get to yesterday in Dallas. Fascinating stuff. What a mess!

* CORRECTION: A commenter correctly noted Roady's sample was retested by DPS, not the FBI. See here.

Roundup: Jails, crime stats and disputed statutes

Here are a number of stories this week which merit Grits readers' attention, even if I don't have time at the moment to elaborate on them:

Jail suicides
See coverage here and here of legislative initiatives on jail suicide in the wake of Sandra Bland's death. And here's coverage of another, earlier jail suicide which received far less attention. MORE: Here's another.

Sheriff values profit over pot busts
In Hudspeth County, the Sheriff will stop arresting people for low-level pot possession at the Sierra Blanc Border Patrol checkpoint because he "he rents that jail-space for profit to other paying counties" and so doesn't want a bunch of marijuana arrestees to take up space and drive down profits. The checkpoint has famously busted celebrities from Snoop Dogg to Willie Nelson.

Sometimes crime pays
At least it does when you're a corporation accused of medical fraud. Johnson and Johnson marketed the drug Risperdal for ailments beyond what it could cure and, in the process, "also turned to corporate welfare: It paid doctors and others consulting fees and successfully lobbied for Texas to adopt Risperdal in place of generics. This meant that the state paid $3,000 a year for each Medicaid patient taking it, rather than $250 a year for each."

Fudging camera data
In Dallas, police are overstating the effectiveness of surveillance cameras by conflating data reported about them with license plate readers. The latter are used to hunt for drivers with warrants in a day and age when more than 10 percent of Texas drivers have outstanding warrants. So of course those generate arrests (if not necessarily any real public safety benefit). But that doesn't speak to the usefulness of stationary cameras, which numerous studies have shown generate few arrests and have little demonstrable effect on crime.

Judge laments demise of key-man system for grand juries
A judge in Waller County issued strident criticisms of Texas' new statute eliminating the key man system and moving toward random selection of grand jurors. Ironically, he thinks the new system leaves judges with too much discretion. See Texas Tribune coverage and the judge's exchange of letters with Texas Senate Criminal Justice Committee Chairman John Whitmire. These critiques offhand seemed strained and odd to me; they may have applied to an earlier version of the bill, but not so much to the version that finally passed.

Civil commitment program unraveling
A judge refused to order five sex offenders into the state's revamped civil commitment program, reported the Houston Chronilce. It's possible the state will "have to operate two separate treatment programs for offenders in the civil commitment program," and it's unclear "what authority does the state have to continue to confine the five men?" The five were "were among 97 who were sent to court for hearings because they refused to sign waivers agreeing to voluntarily enter the new program. Another 85 civil-commitment offenders signed the waivers."

A (soon to be dead) fool for a client
A capital murder case in Smith County where the defendant has been representing himself sounds like a complete zoo. Unlike Scott Panetti, James Calvert has not been diagnosed as mentally ill. But it all sounds pretty out there. Judge Jack Skeen ultimately terminated his self-representation after zapping the guy with a shock belt.

Cleaning up crime reporting
In an underreported change, "House Bill 11 will require all local law enforcement agencies to switch from the old system of Uniform Crime Reporting, which categorizes eight index crimes and 21 other offenses, to the new National Incident-Based Reporting System, which includes eight index crimes and 49 other offenses." Some jurisdictions made the switch more than 15 years ago. Once everyone does, crime stats will be reported in more of an apples-to-apples fashion around the state, which is a good thing.

CORRECTION: An earlier version of this post mistakenly reported that a judge declared Texas' new online solicitation of a minor statute unconstitutional. My bad, he was ruling on the old version of the law. Grits regrets the error.

Chasing justice in Smith County

The Innocence Project of Texas and the national Innocence Project have filed a new habeas corpus writ in Smith County on behalf of Kerry Max Cook. Check out initial news coverage:

• Texas Monthly: Four Decades, Three Trials, Two Death Sentences, One Exoneree. Almost
• Dallas News: Why is it so hard to get justice in the small-town courtrooms of East Texas?
• Dallas News: Years after being freed from death row, East Texas man fights to clear his name

Top 5 Junky Forensic 'Sciences,' or, 'Why are forensics under fire now?'

It's been said that any field with the word "science" appended to its name is "guaranteed thereby not to be a science." With few exceptions, most forensic sciences fall into that category.

There are a few hard sciences like toxicology and DNA. But even DNA has subjective elements, we're learning, when lab analysts interpret DNA mixtures.

I've found myself explaining to several different folk recently why so many forensic disciplines all of a sudden find themselves questioned, so thought I'd share that spiel with readers. The debate really took hold after 2009, when the National Academy of Sciences issued a major report titled "Strengthening Forensic Science: A Path Forward." That expert review called into question numerous forensic disciplines in a fundamental way, particularly undermining the scientific credentials of comparative forensic disciplines from fingerprints to tool marks.

Of the comparative forensics - where somebody sits with a microscope and compares two bullet casings, hair follicles, bite marks, fingerprints, etc. - these are mostly not fields developed through application of the scientific method. Indeed, many of them have little formal scientific underpinning at all. They're just things cops began doing at some point in history (principally post-Arthur Conan Doyle) to accuse people of crimes.

No one develops expertise comparing hair follicles under a microscope, for example, unless they're paid by the state to try to match evidence to suspects in criminal cases (though they're not supposed to say "match"). It's not like there's an independent source of expertise defense attorneys can turn to in such instances - nobody does that work except other crime labs, whose analysts were probably all trained at the same FBI schools as the state's expert.

That's not to say that, being unscientific, these comparative disciplines are necessarily invalid. They're just more craft than science. Experienced, expert examiners can tell a lot about the evidence they look at. But it's at root a subjective, not a scientific process, regardless of the trappings. The NAS report laid that history bare.

Then there are other disciplines - like arson investigation and diagnoses of "shaken-baby syndrome" - where prior conclusions have been abandoned in light of more recent scientific developments. Texas' new and improved junk science writ makes this state an important site for litigating these issues over the next few years, so expect to hear about these topics more in the future. We're at the front end of a period when traditional forensics are being reevaluated, in many cases for the first time.

Here is Grits' list of top five junky forensic "sciences," all of which are either currently under scrutiny or predictably will be in the near future, with a few dishonorable mentions tacked on since five is awfully short for this list. They're in no particular order and represent my own opinion and no one else's. I could probably even be convinced to drop one or two off the list and add others (make your case in the comments). I offer the following up only as an off-the-cuff thought experiment, not a definitive account. With that said:

Bite Marks
Bite marks have been known to be on the junky end for a while, so they're only rarely used. However, prosecutors bring them in when they need that little extra push to get over the hump in a tough-to-prove case. Texas' review of bite marks cases (aka, "forensic odontology") kicks off in Dallas when a committee of the Forensic Science Commission meets in Dallas today (Wednesday) to consider the issue.

Hair Microscopy
This field arguably is more valid than bite marks - a compliment akin to "prettier in a dress than Dennis Rodman" - but was made nearly anachronistic by mitochondrial DNA testing, which is far more precise. Now, modern science and statistics have demonstrated that many analysts, particularly in older cases, routinely overstated the extent to which they could match suspects to evidence in court (for instance, they can't say "match" or even estimate statistical probabilities, since that overstates what could really be known about individualization of evidence from even the most expert review). The Texas Forensic Science Commission has begun reviewing old cases, mirroring a similar effort reviewing hair microscopy at the FBI. But the going is slow and made more difficult by problems getting transcripts from the appellate courts; there's a significant number of these cases out there.

Shaken Baby Syndrome
The New York Times called it "A Diagnosis that Divides the Medical World." Biomechanical research has debunked many of the early claims, but proponents remain dug in. Emotions run so high whenever someone thinks a caregiver murdered a child that science can become lost in the shouting. The Washington Post published a major piece this spring examining the state of the debate. These cases aren't legion but neither are their numbers insignificant. And the defendants are disproportionately women.

Handwriting Analysis
Another science-free field whose validity has been long debated, you'd think this one may eventually go extinct altogether. Analysts' associations are 95% accurate when they have four-page documents to compare, but who writes that much anymore? OTOH, when it comes to identifying forgers from signatures on checks: ''Even in laboratory settings, there is no evidence they can do it."

Abel Assessment/Penile Plethysmograph
These gems are used particularly on the parole side: They show alleged sex offenders dirty pictures and measure their responses, in the case of a plethysmograph by attaching measuring devices to the penis. Various studies have estimated the error rate on the Abel Assessment at 35-48%. One study found "a 42 percent false-positive rate when non-molesters were tested."

Dishonorable mention:

• Dog-Scent Lineups (defunct in Texas, last known uses in Florida, communist Cuba). Former Ft. Bend Sheriff's Deputy Keith Pikett's dogs supposedly performed scent lineups in many hundreds of criminal cases, but nobody's ever tracked them all down.
• Comparative bullet-lead analysis (defunct). As it turned out, an Aggie helped kill it.
• Arson (older cases - Grits readers will recall the problems with arson science raised in the Todd Willingham case, the FSC, and the State Fire Marshall's arson review). Modern, 21st century arson investigation is much more science-based, derived after burning down hundreds of test buildings and gathering evidence. Under modern standards, arson investigators are also more likely to label a fire "inconclusive" than "arson"; many of the old indicators have been debunked but not always replaced.
• Footwear and Tire Tracks 

Finally, as I publish this, I do so knowing that among the first comments will be defense attorneys suggesting Grits should have included proprietary breathalyzer software/equipment like the Intoxilyzer 5000, or some such, to which I'd reply, "I know virtually nothing about it, convince me." So if that was your first thought, get thee to the comment section and do so, with links, please. Otherwise, the above seem to me more like the sort of immediately emerging issues identified in 2009 by the National Academy of Sciences.

Weekend reading

Just to clear my browser tabs on topics Grits won't have time to write about this weekend, check out items on these subject:

• Bite marks
• Halting habeas
• Plummeting private prisons
• Body cameras I
• Body cameras II 
• License plate readers
• DPS v Bland family
• DPS Gang Assessment

UT prof: Expand treatment court sentencing methods to all offenses

UT-Austin sociology professor William Kelly had a column Sept. 10th in the SA Express-News arguing for drug-court style sentencing plans for a much wider swath of offenders. For every offender, he argued, not just the select few who end up in treatment courts:

Effective sentencing should be collaborative, involving a variety of relevant experts in assessment and sentencing decisions. Judges are lawyers, trained in criminal jurisprudence, charged with assuring due process. They are not trained in the complexities of human behavior.

Judges should collaborate with experts from a variety of disciplines as appropriate — psychologists, addiction specialists, neuroscientists, psychiatrists and vocational, occupational and educational specialists — to develop a supervision and intervention plan.

Kelly foresees a judicial system where, "The judge oversees a process that involves a team of experts engaging in problem-solving, setting expectations, compiling assessment information, developing and implementing an intervention and supervision management plan, and dealing with noncompliance and reoffending." That's all well and good, but it would take a lot more judges unless the plan also included a component that limits the justice system's volume, a subject unaddressed in this short article but which couldn't be ignored if his suggestions were put into play.

The tagline to Kelly's column noted that his "most recent book, “Criminal Justice at the Crossroads: Transforming Crime and Punishment,” published by Columbia University Press in May, presents a road map for extensive reform of the American criminal justice system."

Resources on DNA mixtures

Following up on Grits' post about problems with DNA mixture interpretation in criminal cases, I ran across a resource page from the National Institute of Standards and Technology on the topic. Anyone interested in the issue should check it out.

Also, on page 4 of this public defender newsletter out of New York there's a discussion of DNA mixture issues as they're arisen in that state, particularly focused on some of the software used. The newsletter also mentioned a Brooklyn case where a judge refused to allow certain DNA-related techniques to come into court as evidence. In particular: the court found that "evidence based on low copy number (LCN) or high sensitivity analysis of DNA mixtures and results from the New York City Office of the Chief Medical Examiner’s Forensic Statistical Tool (FST) about those mixtures are not generally accepted in the relevant scientific community."

These resources show the DNA mixture issue has been brewing for a while, but it really came to a head when Texas prosecutors had old analyses recalculated and found large changes in the resulting probabilities that evidence matched the suspect. That promoted the issue from a theoretical crisis to an actual, immediate one.

MORE: See the Texas Tribune's initial coverage of potential fallout from the DNA mixture SNAFU.

One-termers

District Attorneys Susan Hawk in Dallas and Jana Duty in Williamson County both defeated incumbent DAs with widely reported problems, but both women have since run into troubles of their own.

Duty defeated incumbent DA John Bradley in a GOP primary in 2012, essentially running the long-time prosecutor stalwart out of town. (He's now prosecuting fishing crimes in Palau.) But lately, she appears to be headed down her own dark path. Duty spent time in jail for contempt in August for violating a gag order and last week the same judge ruled she intentionally withheld evidence at a capital murder trial. Reported the Austin Statesman:

Crispin Harmel can face a second trial because Duty did not intend to provoke a mistrial during his first trial, according to a court document filed Friday by District Judge Rick Kennon.

“It is unknown to the court why Ms. Duty intentionally and willfully withheld the means to view time stamps on the Walmart Surveillance video other than from Ms. Duty’s statement that “(defense counsel) acted so horribly to me during the first trial, that I just — I didn’t want to speak to them,’” the court document said.

“The court does not approve of this conduct or the reason for it. However, the court finds no evidence that Ms. Duty intended to goad a mistrial or avoid an acquittal.”

Prosecutors and defense lawyers have been barred from commenting on the case by a gag order.

Defense attorney Kristin Jernigan filed a notice Friday that she plans to appeal Kennon’s decision to the 3rd Court of Appeals. She has previously argued that Harmel could not be tried again because double jeopardy bars a retrial when the prosecutor’s conduct was intentional in provoking the request for a mistrial.

That makes it sound like Duty essentially just threw a snit fit. To intentionally withhold evidence in a capital murder trial because opposing counsel "acted so horribly to me" bespeaks a profound lack of professionalism.

And in Dallas, after ousting Democrat Craig Watkins in the 2014 general election, Republican Susan Hawk revealed that she suffers from major depression and has taken a leave of absence to be hospitalized for treatment which is approaching the two-month mark.

Dallas News political writer Gromer Jeffers had a column recently documenting the details of her undoing - paranoia, fallouts with long-time allies, divorcing her husband just as she took office, and her unexplained absence from the job in August which was ultimately revealed to stem from mental health issues that she concealed from voters during her campaign. Moreover, she "fired or forced the resignation of at least six key employees under controversial circumstances" since she took office in January, some of them close allies.

I've heard attorneys in Dallas openly speculate she may never come back. But unless she resigns, she's there until 2018.

One empathizes with Judge Hawk but the local perception is she lied to voters and going AWOL is a bad look.

Both women are beginning to look like one-termers.

Privately funded prosecutions at the Travis County DA

A joint investigation by the Austin Statesman and the Texas Tribune exposed a pay-to-prosecute arrangement between the Travis County DA and a private insurance company. Go here for details. A coupla thoughts come to mind:

There are numerous precedents for this sort of special treatment, nearly all of them problematic. Most recently, Texas prosecutors have begun to distance themselves from payday lending companies with whom they'd partnered for years to buck up their hot-check funds.

Historically, in the nation's early days there were no district attorneys - nor for that matter state nor federal penal codes - and prosecutions were private legal actions undertaken like any other civil case. Texas' court of inquiry procedure - creatively used to pursue exoneration (successfully) for Timothy Cole and (unsuccessfully) for Todd Willingham, and an indictment for Williamson County Judge Ken Anderson - is a vestigial holdover from this primitive practice of private prosecutions. Its formal, technical function is to determine whether there's probable cause to bring an indictment outside the grand jury process.

So there's precedent for this sort of arrangement, but it's a legal and historical anachronism. And doing it just for one company smacks of pay-to-play. Give the full article a read; this seems like a really bad look.

Lite Guv blasts media for reporting police lawbreaking, misconduct

The discourse in Texas surrounding police accountability reached a new low last week with the Lt. Governor's contribution. Reported the Houston Chronicle's Bobby Cervantes (Sept. 3):

Lt. Gov. Dan Patrick, no stranger to radio interviews, had to stop and think about whether he would record one for a Texas outlet. He ended up doing it -- talking about his recent call for Texans to treat officers with respect -- but not without chastising the program's host when he tried to steer the discussion to cases of police violence.

"Your type of interview has to stop," Patrick told The Texas Standard's David Brown on Thursday. "Quit focusing on the small percentage of those in law enforcement who have made a mistake or have broken the law themselves." ...

"When I was asked to do an interview on NPR, I thought to myself, you know, do you really want to do this?" Patrick wondered aloud on the air. "They're not in the police officers' corner, and you've proven that by your interview."

It's the press' role to referee these sorts of public policy debates, not work one sides' "corner" or the other. Somebody needs to be in the truth's corner and in this case, Dan Patrick is describing a scenario far removed from reality. The man who allegedly killed Deputy Goforth in Houston is seriously mentally ill and there's zero evidence he was motivated by anything other than his longstanding, well-documented insanity. Regardless, Patrick elaborated his views in a followup Facebook post in which he declared:

I am sick and tired and downright angry at those who demean our law enforcement officers with their verbal attacks. They stir up those who follow up the verbal assault in the streets and on TV with deadly attacks on our officers. The national disrespect for law enforcement must end and end now. The talking heads and loud mouths who constantly attack our law enforcement with their words are putting these men and women in harm's way at a level I have not seen in my lifetime.

Having observed this dynamic for two decades, Grits wasn't surprised to see police and politicians smearing their political enemies as sympathetic to cop killers, no matter how far fetched their claims. Such aggressive confrontation tactics come straight out of the playbook. And to be fair, Dan Patrick didn't start this foolishness. In this case, the meme that somehow #BlackLivesMatter was to blame for the death of Deputy Goforth was launched almost immediately.  

At a second press conference Saturday [Dep. Goforth was shot on Friday] to describe the arrest, Hickman said anti-cop rhetoric could influence people to commit crimes against police officers, but he said he had "no details as to a motive" in this case.

Harris County District Attorney Devon Anderson told reporters earlier Saturday the "vast majority” of police officers had good intentions, despite a “few bad apples” — an apparent reference to recent, high-profile police shootings of unarmed people that has fueled the #BlackLivesMatter movement and other outcries against police brutality.

“That does not mean there should be open warfare declared on law enforcement,” Anderson said. “What happened last night is an assault on the fabric of society.”

Or as recounted by the Houston Press: "Hickman, who cited the 'dangerous national rhetoric that’s out there today' surrounding policing, was even more explicit. This increased scrutiny of law enforcement (or 'rhetoric,' as Hickman put it) has led to the 'calculated, cold-blooded assassination of police officers,' Hickman said."

Not only has no one in the political movement surrounding #blacklivesmatter declared "war" on law enforcement, in reality it is the safest time to be a cop in living memory. Patrick's suggestion that we're witnessing a "war on police" would seem silly except that, like Sheriff Hickman's comments, it's reported nearly uncritically. Because reporters dutifully show up at PR events and transcribe whatever's claimed, it is easy for police agencies to take an isolated if terrible tragedy like this and use it to manipulate public opinion.

Notably, framing the issue as a "war" implicitly justifies censorship.

It's unseemly and wrong for the Lt. Governor to use Deputy Goforth's murder as a cudgel to beat back legitimate questions about police violence and misconduct. The worst part: doing so conveniently diverts discussion away from more relevant considerations which arise from this episode that the Lt. Governor could actually do something about, like the gaping failures in the state's mental-health system which led to this moment, or how someone with the alleged shooter's violent, mentally-ill record could get a gun. (He'd been declared incompetent in an assault case by a Texas court as recently as 2012.) The only connection between this incident and the Black Lives Matter movement are the crass misrepresentations of a demagogue.

The good news: 2017 is a long way away and a lot can happen between now and then. Other Republican politicians - particularly Tea-Party affiliated members - offered countervailing views in the wake of Sandra Bland's death, so not everyone believes cops' actions can't be questioned. But Patrick's adoption of "war on police" rhetoric and his declaration that the press oversteps merely by asking questions about police use of force bodes ill for the future of police accountability legislation in the Texas Senate. Presumably, he'd view filing legislation as an even greater heresy than merely asking questions. OTOH, much can change in 16 months.

MORE: From Mark Bennett, Robb Fickman, and Erica Grieder.

A reluctant scoop: Changing intepretations of DNA mixtures vex legal system

DNA has often been referred to as the gold standard of forensic evidence. And when comparing a single sample to a suspect, that's true. When DNA evidence includes mixtures of DNA from multiple sources, however, the scientific community is still figuring things out. And it takes years for new knowledge to pass down from the highest-end basic research to the work tables of practicing DNA analysts at front-line crime labs.

The most recent such development: improvements in DNA science and interpretation techniques have caused practitioners to change how they calculate probabilities when it comes to singling out a defendant based on DNA mixtures (i.e., when biological evidence includes samples from more than one person). In the most extreme instance, the new method reduced a one in a billion probability that evidence matched a particular suspect to around one in 50, the Texas Forensic Science Commission's Lynn Garcia told the Texas Criminal Justice Integrity Unit (TCJIU) on Wednesday. The issue was first publicly revealed in Texas and, to their credit, the courts and relevant agencies have been quick to confront the challenge, even if nobody quite knows yet what to do.

Grits has put off writing about this topic for a while, mainly because I hoped the MSM would pick up the story  - it's a big one, with national and even international implications - and thus do me the favor of not having to write up a complicated issue (this blog is a hobby for me, after all). But it doesn't appear anyone else will cover it, so it falls to your correspondent to break the news.

The hows and whys of the shift in DNA analysis are complex and sciency. My own math acumen and knowledge of DNA testing is such that, while I can mostly follow what's being said, and have learned much of the vocabulary, I can't pretend to fully understand. So I won't put on airs by attempting to explain what little I do know. It's damn complicated, which is partly why it's taken so long for the issue to percolate to the fore.

At the TCJIU, Garcia told us that the world's leading experts, five of whom will advise Texas on how to address the matter, were all meeting in Poland last week hashing through many of these same topics. One of those experts, Dr. Bruce Budowle, teaches at the UNT Health Science Center and has been providing technical support to the FSC, the Court of Criminal Appeals, and the state prosecutor and defense lawyer associations (for whom he put on webinars ten days ago). Some of the issues which came up in the impromptu discussion at the TCJIU - e.g., must samples be re-tested or may the math just be re-done - are among those on which the the world's leading scientific minds as yet have no firm opinion, said Garcia. We're entering entirely uncharted waters.

The DNA-mixture issue was first publicly discussed at the August 14th Forensic Science Commission meeting, then formally announced in a blandly titled notice issued Aug. 21st by the Texas Forensic Science Commission which landed like a bombshell within the highest echelons of Texas legal circles. Titled, "Notification re: FBI Allele Frequency Corrections and DNA Mixture Interpretation Issues in Texas," the document's dry language revealed a new bleeding-edge conundrum facing the legal system's use of ostensibly gold-standard forensics.

This all began when the FBI identified a handful of errors in its CODIS DNA database (51 problems out of tens of thousand of entries) and issued a public notice saying that the change in any probabilities affected would be insignificant. Garcia said the largest discrepancy estimated from the data-entry errors would have reduced a likelihood of one in 260 billion that it belonged to another person to one in 225 billion. With seven billion people on the planet, that looked like a yawner.

But some Texas prosecutors asked for their probabilities to be recalculated, anyway, and when they came back, they were affected to a far greater extent than had previously been portrayed. The most radical difference involved the case mentioned above where a one-in-a-billion probability was lowered to around one-in-fifty, said Garcia. At that, prosecutors and the FSC perked up and took notice.

It turned out, the difference stemmed not from the data entry errors but because - in response to all that complex and sciency stuff that I'm not going to attempt to explain here - the FBI had changed its methodology for calculating probabilities in mixed DNA samples and moved to a new method which they considered more accurate. According to the FSC notice, "Changes in mixture interpretation have occurred primarily over the last 5-10 years and were prompted by several factors, including but not limited to mixture interpretation guidance issued in 2010 by the [national] Scientific Working Group on DNA analysis" (see here).

When they changed methodologies, though, scientists didn't think to notify prosecutors, much less the defense bar. Apparently, nobody wondered, "What happens when you apply the new method to old cases?," much less, "What if a defendant included by the old method is excluded or undetermined under the new one"?

Those are the questions the wider legal community is struggling with now, at the moment in Texas but very soon across the country and everywhere on the planet where DNA evidence is used in courts.

So many other questions are raised, it boggles the mind to consider. No one knows how many cases are involved, but the fear is it's a lot: Many more than in the FSC's hair microscopy review, which is itself expected to take years.

Further, Texas' mechanism for notifying defendants about past forensic errors has proven inadequate. And while people may be entitled to court-appointed lawyers to get DNA retested or the results recalculated, the state has no viable mechanism for matching lawyers to defendants and, anyway, few criminal defense lawyers have experience filing habeas corpus writs - a point Court of Criminal Appeals Judge Barbara Hervey emphasized at the TCJIU. Many if not most counties outside the major urban centers don't have anyone in the local bar with significant post-conviction writ experience.

Texas is arguably better situated than most states to address these questions. The Forensic Science Commission provides an important and trusted clearinghouse that stakeholders from both sides of the bar and the scientific community, for the most part, all consider a fair broker. Indeed, that's the main reason why Texas is the first state to address this: The FSC is out there actively scouting these issues, not sweeping them under the rug.

Moreover, our DNA testing statute is one of the most robust in the country. And the state's new junk science writ provides a solid basis for litigating forensics claims, particularly those as in this case where the issue stems from advancements in science rather than errors or misconduct.

Finally, this session the Legislature expanded the jurisdiction of the Office of Capital Writs to make it the Office of Capital and Forensic Writs, presaging exactly this sort of development. (Grits supported this idea, which was dubbed by critics the "OCW Empire Expansion Act.") Regrettably, though, no extra money came with that added mandate. And with the small agency recently changing leadership and facing a series of intense deadlines in numerous capital cases this fall, wizened observers fear handing the agency any new duties related to forensic writs would utterly overwhelm it.

Luckily, the Texas Indigent Defense Commission for the first time this biennium was given a new pot of money which could fund this work through the OCFW if that's what state leaders decide to do. The commission next meets in December. Between them and the Governor's office, which Garcia said had already stepped up to the plate with funding from the Criminal Justice Division to help with the initial reaction, there should be resources to at least triage the issue and create a plan, which would be an improvement from where we are now.

All that to say, Texas has a few more tools in the toolbox than most other states to address this cluster$#@k. But it's still a cluster$#@k.

RELATED: Go here to view Dr. Budowle's presentation to the Forensic Science Commission's Aug. 14th meeting, beginning at the 2:04:30 mark. The Commission's working group on DNA mixtures will meet in Dallas on Sept. 18.

AND MORE: The Marshall Project linked to this post in their 9/8 daily email and referred to one of their own recent articles, "The Surprisingly Imperfect Science of DNA Testing" which hones in on some of these mixture issues with a dramatic case study.

End of an Era: Rissie Owens replaced as parole board chair

There was a time when Rissie Owens and her husband Ed were the ultimate Texas prison power couple. He ran TDCJ's institutional division overseeing all Texas prison units and she chaired the parole board which decided how full those prisons would stay. It was a cozy, all-in-the-family arrangement.

Ed retired a few years ago to take an ill-fated turn running the Texas Youth Commission during its darkest days. And now the Houston Chronicle reports that Gov. Abbott has replaced Rissie Owens as parole board chair with David Gutierrez, "who has served on the parole board since 2009, served as the sheriff in Lubbock for 11 years and was chairman of the Texas Commission on Jail Standards and the Texas Correctional Office on Offenders with Medical and Mental Impairments Advisory Board. He is a past president of the Texas Corrections Association and the Texas Jail Association."

I like Rissie; she knows how to disagree without being disagreeable and has never been anything but charming and gracious toward me. She grew into the job and in her early days didn't understand how to manage her relationships with the press or the Legislature. Some of her public comments, particularly early on, earned her a reputation as a hard-ass. And sometimes she said things that were just confusing and wrong. Moreover, her defiance of the federal judiciary over assigning sex-offender conditions to offenders not convicted of sex crimes bordered on the insensible.

OTOH, under her watch rising parole rates have accounted for much of the slack space that allowed Texas to close three prison units. Especially on revocation policies, the board embraced reform more than most local probation departments, which did not see revocation rates decline nearly as much as on the parole side, though they were given basically the same tools to accomplish the task.

I spoke briefly this morning with Bill Habern, an attorney based in Huntsville who has practiced in front of the parole board for four decades. He said that "while she's not the best chairman we've had, she's certainly not the worst. Many issues were not in her control. But she was in the job too long and that gives too much of an opportunity for the office to become focused on power and politics and become stale. That would be true of anyone who stayed in office that long, so that's not a condemnation of her personally. But it's time to move along." He thinks Gutierrez has been a fine board member and expects good thing from the former Sheriff.

Habern mainly faulted Owens for failing to address consistently bad legal advice that led the board down rabbit trails the courts would then predictably shut down. Two in particular he mentioned were imposing sex offender conditions on people not convicted of sex crimes and illegally terminating the parent-child relationship without due process. He said she remained loyal to her lawyers even after they consistently gave advice that put the board cross-ways with federal courts and other state agencies.

Habern also faulted Owens for keeping parole commissioner Pamela Freeman as a parole commissioner long after her shortcomings had been identified in multiple grievances by attorneys who practice before the board. Instead, Freeman kept working until she was indicted last year for document tampering in a case which may go to trial by the end of the year. There were plenty of red flags before it came to that, said the lawyer.

Finally, Habern added via followup email, "Even after our law firm had serious differences with the policies of the Board we felt were unconstitutional, and litigation was filed, I must say that Owens and the other board members and commissioners (except Freeman) treated us totally professionally, and with respect. I never felt a hint of retaliation from the legal differences which ended in the court room. I thought that spoke and speaks well of Owens and the other panel voters."

Say what you want to about Rissie Owens - and I'm sure readers will, in the comments - but her departure marks the end of an era for the nation's largest state prison system. Grits wishes her well in all her future endeavors.

An under-celebrated holiday

Apparently today is National Grits for Breakfast Day, I learned via Twitter.  All recipes (e.g., see here and here) and no criminal-justice policy, but still, I'll take it.

Image via La Comida de Clary

Recommendations from Sandra Bland legislative hearing

Check out this compilation of legislative recommendations submitted to the Texas House County Affairs Committee during their July 30 hearing regarding the Sandra Bland episode. Via the Texas Association of Counties. My own suggestions were recorded here.

The entire hearing lasted more than seven hours; you can watch it online here. Find written testimony submitted to the committee here.

Reviewing 2015 criminal justice reforms, and other stories

Here are several recent stories which merit Grits readers' attention:

Reviewing criminal justice bills from 84th Texas Legislature
See the Texas Criminal Justice Coalition's 84th session wrap-up document.

Debating legacy of Texas 2007 de-incarceration reforms
The Texas Criminal Justice Coalition's Ana Correa and Marc Levin from the Texas Public Policy Foundation co-authored a column which implicitly replied to an earlier guest column minimizing the importance of reform measures passed eight years ago. Grits earlier offered my own rebuttal to the piece.

Too many jails get loophole in bill requiring in-person visitation
The bill to preserve in-person visitation at county jails was a bit of a mess, reported the Dallas News, leaving room for counties to game the system and pretend they're already invested in new systems to get in under an arbitrary deadline. There should be some means to go back and force these agencies to enable in-person visits, especially for those who announced their interest in changing over only after the bill was filed.

Sheriff blames deputy's murder on Black Lives Matter
A mentally ill man shot a Harris County Sheriff's Deputy and the Sheriff blamed the Black Lives Matter movement based on exactly zero evidence. The Harris County Sheriff runs the largest mental hospital in Texas, but he ignores the mental illness angle and blames his political enemies. Pathetic.

Hands up!
Two Bexar County Sheriff's deputies shot a man who supposedly had his hands up at the time. KSAT-TV paid $100 for cell phone video of the killing, which seems to have the Sheriff's Office more hot and bothered than what their employees did.

Kids or Criminals?
That was the title of a Dallas Morning News feature on youth who grow up incarcerated.

Be sad - but not scared
Here's a good editorial from the Fort Worth Star-Telegram putting coverage of violent crime into perspective.

Oliver Sacks on the reliability of eyewitnesses
Neuroscientist Oliver Sacks passed away recently and his death reminded me of an excellent short essay he wrote a couple of years back on the reliability of eyewitness identification. I've read several of his books; his passing was a loss.

CORRECTION: An earlier version of this post misread data from a DPS gang assessment report and that sub-item has been removed as has the reference to it in the headline. Grits regrets the error.

Tear gas fired into state jail dorm at 'largely motionless inmates'

When prisons have high rates of staff turnover - thanks in large part to low pay, long hours, and a lack of air conditioning - you end up with inexperienced corrections officers, dumbed down supervision, and bad decisions. Reported Ted Oberg at KTRK in Houston (Aug. 27):

A corrections supervisor fired a canister from a tear gas rifle inside a Lychner State Jail dorm at a crowd of inmates at short range, hitting an inmate in the shoulder and sending him to the hospital for burns and other injuries, according to records and interviews.

A video obtained by Ted Oberg Investigates shows the incidents leading up to the shot as well as the canister being fired from the tear gas gun into a crowd of largely motionless inmates, hitting one with a shower of sparks.

The Texas Department of Criminal Justice's initial review of the incident, in which Lt. Cody Waller fired the canister on May 19 soon after 11:20 p.m., "revealed several mistakes," TDCJ officials told ABC-13.

Among those mistakes: That canister fired at the inmates is designed for outdoor use, not inside a dorm and that any "chemical agents should have been administered through the door rather than in the middle of the housing area," TDCJ officials said.

Waller was put on a 10-month probation on July 8 but kept on the job at the Humble-based facility.

Reading the details from Oberg's account, the episode exhibits not so much malicious behavior by the supervisor as confusion, frustration at facing a situation beyond his skill set to resolve, and a general lack of professionalism. In the absence of more able management, unit staff appeared to make stuff up as they went along instead of following their training, even though the inmates posed no immediate threat. Noted Oberg, in the video, "Waller and other staffers walk right through the inmates. They are clearly not being aggressive to the guards."

It's hard to pin responsibility for any one incident on anybody besides the inmates and staff involved, but the diminution of experience and competence among TDCJ staff thanks to many years of high turnover to me is a likely secondary cause for this sort of event. We've heard much about the need for police to use de-escalation tactics at traffic stops to prevent events like the Sandra Bland arrest, but that skill's just as or more important for prison guards. And apparently nobody on duty at the Lyncher State Jail that night in May had the skills to de-escalate a tense-but-not-yet-violent situation.

See TDCJ's statement on the incident.