Systems failure

This suggestion for a "Systems Approach to Error Reduction in Criminal Justice" to which Grits' new co-blogger Jennifer Laurin linked in her inaugural post reminds me of how the NYPD seeks to prevent terrorist attacks, using failures (thankfully, mainly in table top exercises) as a roadmap for crafting preventive measures. Terrorist attacks on US soil, happily, are even more rare than false convictions, by far. But taking a systems approach toward preventing unlikely but terrible outcomes makes loads of sense and is supported by the cases Texas' Exoneration Commission will review.

When dozens of drug defendants are exonerated for the same reason - they pled guilty rather than wait for months in jail for tests to come back from the crime lab - that's a systems problem, not just a problem in one individual's case.

IMO we should consider a false conviction to be as serious as a plane crash and confronting failures with a systems review, as they famously do with downed aircraft, conveys the gravity of the problem. Yes, the plane crash affects more people, at least on the surface. But for every false conviction identified and for which successful redress has been obtained, there are dozens if not hundreds of other innocent people convicted who can never be identified because there's no exculpatory DNA, Brady violation found, or other smoking gun to definitively prove their innocence.

Jennifer described that larger category thusly to me in a private email: "the real concern is that 90% of cases really aren't 'about' the evidence per se. (As the guilty pleas in the complete absence of corroborative evidence demonstrate.) They're about resources, leverage, negotiation, and enough evidence to get over the probable cause hurdle. And so that's where, as you say, bail reform meets innocence work, sentencing reform meets innocence work, etc."

That's exactly right, and it sums up the challenge faced by those who would extend innocence-related critiques and reforms beyond what Laurin called the "canonical," traditional issue areas like eyewitness ID and access to DNA testing.

Whether Texas' Exoneration Commission adopts such an approach remains to be seen, but it's arguably the best way to get to the root of these questions.

Feds recalling military gear for cops, and other stories

Here are a few items which may interest Grits readers while my attentions are focused elsewhere:

• Good news: According to a complaint in the press from Sheriff Gary Painter in Midland, "As part of President Obama’s executive order issued earlier this year, local law enforcement agencies with certain types of military-style gear obtained through the federal 1033 program - which granted surplus military gear to local agencies - are being required to return the equipment." Further, "The recall order issued from Washington pertains to equipment such as tracked armored vehicles, bayonets, grenade launchers, large caliber weapons and ammunition, according to the written order. Law enforcement agencies will be required to provide additional training and certification when applying for this specialized equipment in the future."
• A federal judge has intervened to halt the state prosecution of an Austin police officer for shooting an unarmed black man. The judge ruled the officer had federal immunity from working with a federal task force. MORE: See related coverage from the Washington Post, which reported that "59 officers ... were charged over the past decade for fatally shooting someone while on duty. In criminal court, 11 of the officers were convicted and served time. But when 46 families of those shot and killed by police sought justice in the civil system, 32 received monetary awards,"
• See a positive profile from Texas Lawyer of Forensic Science Commission general counsel Lynn Garcia, who really has made a huge impact this year. When an editor friend at the Dallas News asked what figures from the criminal-justice arena they should consider for Texan of the Year, Lynn was on my short list.
• From AllGov.com, "Debtors prison charges leveled at Austin, Texas."
• One in 14 American kids and one in nine black children have an incarcerated parent.
• Grits thought this was an especially effective presentation of "How post-conviction procedure rules inhibit truth finding."

GRITS Conference Brings Attention to Bail, Fee Reform

This weekend, your correspondent had the pleasure of attending the first-ever Getting Radical in the South Conference (GRITS – no affiliation with this blog) at the University of Texas School of Law.  The conference gathered lawyers and activists from all over the country, but predominantly the South, to discuss radical lawyering and organizing.  While the conference covered subjects ranging from immigration to policing to voting rights, criminal justice (or “criminal injustice,” as some participants preferred) emerged as the major topic of the weekend.  Particularly relevant to recent developments in Texas was a discussion on bail and fee reform.

The keynote speaker was Alec Karakatsanis, cofounder of the nonprofit Equal Justice Under the Law out of Washington, D.C.  He and his team of lawyers have been filing legal challenges across the United States to local jurisdictions’ practices of jailing people solely because they are too poor to pay bail or fees.  Equal Justice has been very successful in arguing that the Equal Protection and Due Process clauses forbid courts from jailing indigent defendants who – for no other reason than being indigent – cannot come up with the money to stay out of jail.  So far, Equal Justice has amassed wins in Alabama, Missouri, Mississippi, Louisiana and Tennessee, and has also filed lawsuits in Georgia and most recently, California.

Between Mr. Karakatsanis’s group making its way westward and through the South, the Texas Fair Defense Project’s having filed a lawsuit last week in Austin challenging the city’s practice of jailing people for being unable to pay fines and fees, and the ubiquitous use of bail schedules in Texas, it is only a matter of time before Texas’s practices are also subject to legal scrutiny.  And political scrutiny should be forthcoming as well: the Texas Judicial Council’s Criminal Justice Committee is currently working on a study on pretrial confinement in Texas, which will hopefully be released ahead of the next legislative session.  Pending litigation and new policy research may create the perfect storm for meaningful bail and fee reform in 2017.

The GRITS conference was a great success, and my only wish is that the conference had started back when I was at UT Law 2009-2012.  Major kudos go to the students and organizations that made it happen.

Grits' note (the blogger, not the conference!): Amanda Woog, the youngest of this blog's fabulous new contributors, was first introduced to Grits readers in this podcast about her research on police shootings. Grits first met Ms. Woog when she showed up as a standout policy attorney for the House Criminal Jurisprudence Committee this past session who, as near as I can tell, impressed everyone who met her. Before that, she clerked for Judge Cheryl Johnson at the Court of Criminal Appeals and was an intern at the Office of Capital Writs during law school, so now we have someone else on the blog who can talk writs! It's going to be fun having new voices in the mix. Thank you, Amanda! I couldn't be more pleased to have you writing here.

Exoneration Review Commission To-Do List Part 1: Broaden the Conversation

As Grits has been reporting in recent days, the newly minted Timothy Cole Exoneration Review Commission ("TCERC") has, at long last, commenced its work to review "cases in this state in which an innocent defendant was convicted and then, on or after January 1, 2010, was exonerated." Given that the group has just over a year to complete its work - its authorizing legislation requires that a report be produced by December 2016, at which point the Commission is dissolved - it will quickly need to settle on a plan of action, and craft a narrow focus for its work.  The Innocence Project of Texas has issued its own recommendations for how the Commission should proceed - recommendations that I plan to comment on in a second post on this topic.  But for today, I thought I might humbly weigh in with my own brief thoughts about the work on which the TCERC is embarking.

The overarching principle driving the bullet-point recommendations below is the following:  Texas should leverage the work of the TCERC to generate *new* insights in the innocence-driven criminal justice reform conversation, by attending to features of adjudicatory error that the innocence lens neglected to date.  Examples of such neglected issues include false guilty pleas, wrongful conviction in low-level (non-felony or less-serious-felony) offenses, the role of informants in wrongful conviction, and the responsibility of defense counsel for error non-detection; and the list could go on. 

The point is that the study of wrongful convictions to date - through other states' exoneration review commissions, academic work, and advocacy groups like the national Innocence Project - has generated what scholar Sam Gross dubs a "canonical list" of the "causes" of wrongful conviction. But nothing like rigorous (or even un-rigorous) empirical methodologies have generated that list, as I have argued elsewhere.  Rather, these are the features that emerge from (1) a particular category of cases, mostly serious, violent felonies for which (a) defendants are serving long sentences and thus have the incentive and ability to vigorously litigate innocence, and in many cases (b) physical evidence susceptible of DNA or other forensic testing is available, and (2) a particular menu of options that legal doctrine (as well as political constraints) supply for framing post-conviction claims of innocence.  Too abstract?  The professor will get specific.  Low-level crimes for which individuals are serving relatively short sentences receive next-to-zero accuracy-based scrutiny following conviction, because there is neither time nor incentive to do the litigation that typically generates exonerations.  Convictions obtained by guilty plea, which are the vast majority of misdemeanors and non-violent felonies, receive next-to-zero accuracy-based scrutiny because of waivers of review that attend the plea process, and because these convictions rest on negotiation strength, rather than evidentiary strength.  Investigative or adjudicatory deficiencies that do not sound easily in constitutional litigation, such as the use of unreliable informants (not illegal in and of itself), do not readily emerge as documented bases for exoneration insofar as the post-conviction litigation process is the diagnostic device.  This is not to say that what we think we know about wrongful convictions is wrong.  But it is almost certainly incomplete.   

My hope is that the TCERC will transcend the limitations of the standard wrongful conviction frame and generate insights that will expand the impact of an innocence-based reform frame to corners of the criminal justice system that to date have not been adequately probed and critiqued by that frame.  How can it do that?  Here are some broad-brush recommendations that might put the group on a path to achieving that goal.

• Avoid the lure of the "canonical list."  Enough said on this front.
• Ditch the litigation record and take a "systems approach."  The Commission should eschew reliance on the findings of error in post-conviction litigation as a starting point or focus for review.  The Commission model permits reconstruction of failed investigations and prosecutions *outside* the adversary model of litigation, and without the imperative of identifying *legally relevant* causes of error or attributing *blame* for error.  It is that approach - a "systems approach" - that has been successfully followed in health care, aviation, and other industries that routinely conduct reviews of failed cases.  Researchers are advocating adoption of "systems review" in criminal justice, and the TCERC could and should be on the vanguard in this respect.
• Play the "three year old" game ("Why???").  Perhaps this goes without saying, but rigorous interrogation of causation requires boldly continuing to ask "why" something occurred.  Our adversarial legal system cuts off the "three year old" game, both because some answers are not legally relevant (it doesn't matter, for example, "why" exculpatory evidence didn't reach a defendant, under Brady doctrine), and because some answers are not strategically helpful (it's not helpful, for example, to a Brady claim if defense counsel got a little lazy in looking under the hood of the prosecution's case).  The TCERC has none of these legal constraints.  It must also, of course, eschew any political constraints in playing the three-year-old game.  If the game leads to tried and true systems of plea negotiation, or of defense funding, or of informant tracking, or of bail assessment . . . so be it.
• Prioritize low-level cases in the review.  The TCERC should avoid any temptation to concentrate its finite resources on the most "serious" cases that have emerged since 2010.  Texas has the "good" fortune of having a data set of dozens of plea exonerations, thanks to an array of laboratory errors in DWI and drug cases.  This presents a rare opportunity to examine why defendants plead guilty to demonstrably false charges.  

Grits' note: This is the inaugural post from Jennifer Laurin, a UT law professor (currently visiting faculty at Columbia) and IMO one of the sharpest minds in the state when it comes to evaluating the causes of false convictions and related errors. She's coauthor of the newest edition of Police Misconduct Law and Litigation, and is currently serving as Reporter to the American Bar Association's Criminal Justice Standards Task Force charged with updating the 1996 3rd Edition Discovery Standards. Please give her a warm welcome, I couldn't be more grateful to Jennifer for helping class up the joint.

AP: Hundreds of cops lost licenses for sexual misconduct, dozens in Texas

The Associated Press performed an investigation into police officers who lost their licenses over sexual misconduct, finding 1,000+ cases over six years in 41 states. See the list, the narrative, and a discussion of their methodology.

In Texas, "The Texas Commission on Law Enforcement decertified 619 officers [from 2009-2014], 79 for sex-related misconduct. Agencies are required to report officer arrests to the state, though not the cause of those arrests. Decertification can happen when an officer is convicted or found to have committed noncriminal misconduct."

Compared to less populous states with more robust licensing and reporting schemes, though, perhaps the numbers should be even higher. (AP acknowledges the 1,000 number "is an undercount.") During the same period, Florida "decertified 2,125 officers, 162 for sex-related misconduct," while Georgia "decertified 2,800 officers, 161 for sex-related misconduct." Do we really imagine that Texas cops' misconduct rates are so much lower, or are disciplinary processes in those states more effective and transparent? My money's on the latter.

Of course, decertification doesn't happen in every case of sexual misconduct, so all these data fail to include officers who are disciplined, or even fired, for sexual misconduct, but not decertified.

Texas wouldn't comply with the 'Mandela Rules' on solitary - should it?

Grits this morning learned that last month new United Nations standards on solitary confinement and treatment of prisoners dubbed "the Mandela Rules" were adopted by the General Assembly. See here, here, here, and here.

Here are the rules themselves. Though non-binding (and a lucky thing, since Texas doesn't come close to complying), they prohibit indefinite solitary confinement, like Texas uses for gang members, as well as "prolonged" solitary confinement, defined as more than 15 days. (Texas has been known to utilize solitary for a bit longer than that.) The new standards insist that solitary "shall be used only in exceptional cases as a last resort for as short a time as possible and subject to independent review."

Readers may recall that the Texas Senate Criminal Justice Committee has an interim charge related to reentry following solitary confinement (which in Texas is called administrative segregation). They're supposed to study the issue and make recommendations to the 85th Legislature in 2017. While the UN's imprimatur may be decidedly unhelpful in Texas (think Jade Helm), the Mandela Rules show these issues are being reconsidered in many different quarters at this particular moment in history. Lt. Gov. Dan Patrick assigned an interim charge on ad seg in Texas not because he's following the UN's lead; it's that the situation has become so critical it can no longer be ignored either by state leaders or at the global level.

Related Grits posts:

• First TDCJ prisoners pass 30-year mark in solitary confinement
• More inmates in solitary in Texas than entire prison systems in 12 other states combined 
• On the perils of reentry following solitary confinement and possible solutions 
• Does excessive use of solitary confinement harm public safety? 
• Don't release inmates directly from solitary into the free world
• Push to reform ad seg lacks organic constituency 

Smithee to chair Exoneration Commission

The Timothy Cole Exoneration Review Commission held an organizational meeting on Thursday and will meet again before the end of the year.

In addition to the members designated by statute, Chief Justice Nathan Hecht appointed former Harris County DA Carol Vance on behalf of the Texas Judicial Council, and Governor Abbott appointed Charles Eskridge, a prominent Houston attorney who helps vet federal judicial candidates for Senators Cornyn and Cruz and helped Anthony Graves seek Charles Sebesta's disbarment. (As luck would have it, your correspondent is an advisory member of the panel on behalf of the Innocence Project of Texas.)

I particularly enjoyed meeting Mr. Vance, whose name I've heard since my youthful days as a reporter, by which time he was already a living legend among Texas prosecutors. Having been appointed Harris County DA by John Connally then winning reelection, Vance served in that capacity from 1966 to 1979. Then in 1992, Ann Richards appointed him chairman of the Texas Department of Criminal Justice where he presided over its massive expansion. For the past twenty years, though, he's been a passionate prison-ministry advocate. An eponymous prison unit 30 miles from Houston is the site of the late Charles Colson's famed Inner-Change Freedom Initiative. (Vance is 82.) His reputation may be that of a "stormtrooper," as an attorney friend declared upon learning of his appointment. But that's neither the sense I got from his remarks to the group on Thursday, nor from our brief conversation, after which I left thinking he could end up being a really valuable addition to the group.

Most of the meeting consisted of brief overview presentations and introduction of staff and members. Senator Rodney Ellis and an ailing but game Ruth Jones-McClendon offered opening remarks. The Commission saw a compelling video on Tim Cole's posthumous exoneration and heard exoneree Richard Miles recount the story of a prosecutor hiding exculpatory evidence to convict him and the state bar giving the guy a pass. Forensic Science Commission Chairman Vincent DiMaio described the challenges distinguishing between real and junk science among traditional forensics.

The only real action taken by the Commission was to select a chair, which HB 48 declared would be selected by the group's members. State Rep. John Smithee of Amarillo offered to do the job and was handed the gavel by acclamation. Grits thinks he'll be an excellent leader for the group.  He's passionate about the issues - as Tim Cole's family was leaving toward the end of the meeting, Smithee stopped them and pledged that the commissioners would try to make them proud - and he has supported all the major innocence reforms at the Texas Legislature over the last several sessions.

As a bonus, as a House committee chairman and ally of the Speaker, perhaps Chairman Smithee will be in a position to shepherd reforms through the Calendars Committee, which for several sessions has functioned as a graveyard for reform bills like recording custodial interrogations. After all, the important thing in the end is not, "what does the commission recommend?," but "what does the Legislature pass?" The 11 recommendations from five years ago covered six major issue areas, all but one of which (recording interrogations) have been addressed by legislation in the intervening years.

The group has basically a year to come up with new recommendations to prevent false convictions, so of necessity they'll have to limit the issue areas on which they focus. IPOT produced a summary document for the commission suggesting potential areas of focus based on the group's statutory duties and the array of cases from 2010-present they've been charged with analyzing - it's not a set agenda but a starting point for discussion. In particular, IPOT hopes they'll issue recommendations on new areas which the 2010 Tim Cole Advisory Panel did not address, like reining in mendacious confidential informants and the pressure put on innocent defendants in less-serious cases to plead guilty because of pretrial detention. The commission has a big job ahead of it and I look forward to working with all these folks.

MORE: From the Amarillo Globe-News.

Would making Daylight Savings Time permanent reduce crime?

Would making Daylight Savings Time permanent reduce crime? Reported the Houston Chronicle's Mike Glenn (Oct. 30):

Daylight saving time will come to an end at 2 a.m. Sunday, but a pair of researchers say crime across the nation could drop and millions of dollars could be saved if everyone forgot to fall back and just made it permanent.

Shifting daylight from the morning to the early evening has "pretty hefty returns for public safety," authors Jennifer Doleac and Nicholas Sanders wrote in Brookings about their upcoming paper in The Review of Economics and Statistics.

"When (daylight saving time) begins in the spring, robbery rates for the entire day fall an average of seven percent, with a much larger 27 percent drop during the evening hour that gained some extra sunlight," they wrote.

See more detail from Brookings. There's a certain logic to the argument, to be sure:

The study found that most crime occurred in the evening, generally between 5 to 8 p.m. Adding an extra hour of daylight would help to reduce crime, they said.

"We feel safer when we're walking in the daylight," they wrote. "Offenders know they're more likely to be recognized and get caught if they're fully visible."

But a natural experiment created by Congress allowed them to test the hypothesis with data: "In 2007, Congress extended daylight saving time by four weeks - three in the spring and one in the fall - to reduce energy consumption. The researchers said the extension saved $59 million in avoided social costs by reducing the number of evening robberies."

If the data truly demonstrate it reduces crime, making Daylight Savings Time permanent makes lots of sense. I'm tempted to use the phrase "common sense," but in general Grits finds most common-sense positions suffer from a striking lack of self-awareness about their shortcomings - sort of the public-policy equivalent of anosognosia. In this case, though, there's a data-driven analysis to support a common-sense view.

The anachronistic, seasonal daylight-savings time system held over into the 21st century as a relic from America's rural past. For a nation of townies, setting a single, uniform time standard based on maximizing public safety seems like a wise, overdue move. At a minimum, it would stop everyone misusing CST/CDT when they designate meeting times. I'm convinced most folks just guess.

Prosecutor: We'll test DNA if we can still execute you, anyway

Grits found it remarkable that the Texas Court of Criminal Appeals continued to deny death-row Larry Swearingen DNA testing even after the Legislature changed the law this year ostensibly to allow it. See Judge Keasler's ruling denying testing, Judge Yeary's partial concurrence and partial dissent, and Judge Alcala's dissent. (The rulings interpret the version of the statute before this spring's changes.)

The Houston Chronicle's Cindy Horswell had by far the best coverage of the ruling (Oct. 28). This observation, to me, summed up the absurdity of the situation: Montgomery County DA Brett Ligon "said his office has offered to do the additional DNA testing since 2013 - if Swearingen's attorneys' would agree the findings would not alter the outcome of the case." So, he's willing to have DNA testing performed so long as Swearingen can still be executed if he turns out to be innocent ... the mind reels!

In that light, the Court of Criminal Appeals denying testing makes little sense to this non-lawyer observer. Killing Swearingen without testing guarantees questions will hang over the case because of such an aggressive, disingenuous stance by the DA, which is reminiscent to this writer's mind of John Bradley's years-long battle to deny DNA testing to Michael Morton. Bradley made similar claims about the overwhelming evidence of Morton's guilt right up until DNA evidence cleared him. So if evidence of Swearingen's guilt really is "overwhelming," testing the evidence should be no big deal. But when you're talking about capital punishment, it's better to know than assume.

Swearingen is represented by Bryce Benjet of the national Innocence Project, where "attorneys are mulling over whether to file yet another motion to seek DNA testing under this revised statute," Horswell reported.

Free film screening of "The Guy With the Knife" next Thursday evening

Those of you living in Texas in 1991 may remember the high profile case of Houston banker Paul Broussard, a gay man, who was killed in the Montrose neighborhood in an apparent hate crime.  The case galvanized the gay community, and local activist Ray Hill helped generate substantial media attention to the crime in an effort to identify and prosecute the killers.  Eventually, a group of teenagers from The Woodlands were charged in the crime.  One member of the group, a 17-year old named Jon Buice, was identified as "the guy with the knife" who actually stabbed Broussard.  While most of the teens received probation or relatively light sentences, Buice pleaded guilty and received a 45-year sentence in a plea bargain agreement.

Shortly after Buice was convicted, Ray Hill--the activist who helped put Buice in prison--befriended him and, over time, came to believe that this was not a hate crime at all.  Buice grew into a model inmate, obtained college degrees, and gained the support of many in the gay community as he went up for parole.  But the victim's family, spurred on by the efforts of Houston victims' advocate Andy Kahan, fought his release.  A positive parole vote was rescinded a few years ago following some intriguing twists and turns.

Canadian filmmaker Alison Armstrong has now made a compelling documentary about the case called "The Guy With the Knife."  The film, which has won awards at several film festivals, raises fascinating questions about the influence of the media in criminal cases, about how much punishment is enough, and about the nature of forgiveness.  And it presents unsettling information about injustices in the case that have not previously been brought to light.

The film is screening for free at the LBJ School of Public Affairs on Thursday, November 5, at 7 pm (doors open at 6:30 pm).  Admission is free, but you must register at this site, which has more details about the event.  Following the film, there will be a panel discussion moderated by LBJ senior lecturer Michele Deitch with filmmaker Alison Armstrong, journalism prof Michael Berryhill, and Houston LGBT activist Maria Gonzalez.  Some of the subjects from the film will also be in attendance.

RELATED: See Michael Berryhill's essay on this case from 2013.

Grits' note: This is the inaugural post from Michele Deitch, an attorney and senior lecturer at the UT-Austin LBJ School and another of the terrific new folks I've asked to join me writing on Grits. Michele's impressive depth of experience on criminal justice issues dates to her stint as a full-time monitor for the federal court in the Ruiz case, which means she's been at this even longer than me! At the Texas Legislature, Michele is a trusted voice both on juvie and prison condition issues. I'm grateful she's agreed to do this.

Forensic fails, and other stories

As your correspondent prepares for today's Exoneration Commission hearing, here are a number of items which likely won't make it into individual blog posts but which merit Grits readers' attention:

No clear way to track down junky bite-mark cases
The Dallas News has a high-powered team - Brandi Grissom and Jennifer Emily - covering the Steven Chaney bite mark case and the Forensic Science Commission review of bite mark cases. They reported Monday that "Tracking down dozens — maybe hundreds — of other potentially innocent victims of junk science won’t be ... easy. There is no central repository of cases in which bite-mark testimony was key. There’s no database of dentists who testified about bite marks. And the cases are mostly decades old, and experts, defense lawyers and prosecutors have moved on or died."

Bad Ballistics?
The Texas Court of Criminal Appeals ordered an examination into overstated ballistics testimony from an expert in Arthur Brown, Jr.'s 22-year old capital murder trial, in which he was prosecuted along with an already-executed accomplice for a quadruple killing in a botched drug transaction. Reported the Houston Chronicle:

Brown was scheduled for execution in October 2013 but received a stay to allow for forensic testing of evidence. An accomplice, Marion Dudley, 33, was executed in 2006.

On Wednesday, the appeals court judges acted on Brown's November 2014 appeal in which he asserted that Houston Police Department ballistics expert C.E. Anderson "testified falsely or in a materially misleading manner" in his case. Judges held that the claim met state standards warranting review.

See the court's order.

Paging Antonin Scalia: On the right to confront the boss of your accuser
The Court of Criminal Appeals also ruled that the requirements of the Sixth Amendment's "Confrontation Clause" may be met for "batch DNA testing" by a crime lab supervisor testifying based on computer printouts instead of the lab workers who conducted the analysis. Judge David Newell is of course correct that neither the CCA nor SCOTUS have ever "squarely answered this question." SCOTUS said that sworn affidavits are insufficient, but not whether a supervisor can testify based on the work of her subordinates. But one certainly wonders what Antonin Scalia might say about it. It's hard for this non-attorney to understand why relying on data generated by non-testifying lab analysts is different from relying on an affidavit to which they did not testify.

Are black-box calculations problematic for DNA mixtures?
Next year, the Department of Public Safety and most other Texas labs will shift to "probabilistic genotyping" to analyze DNA mixture evidence, a method which supposedly is superior even to the adjusted calculations which are currently available. However, that method relies on proprietary programs with black-box systems for which the makers will not release their code, similar to the situation surrounding proprietary breathalyzer algorithms which accuse defendants based on computer code which their attorneys and the court cannot see nor evaluate. See good discussions of the topic from Slate and Ars Technica. Moreover, as Grits reported earlier, because of the nature of the calculations, results based on probabilistic genotyping will be different every time - they're not replicable, in addition to not being transparent. So, while the fact that the DWI equipment is still in use makes me think Texas courts would ultimately find a way to allow this sort of proprietary opacity, Grits continues to wonder if probabilistic genotyping is the best tool for the job when it comes to providing courtroom testimony, given that there are other methods available where the calculations are both transparent and replicable.

Finding housing with a felony record
There's a good article in the Houston Chronicle on the struggles poor people have renting an apartment with a felony record. Houston is closing a dangerous low-income apartment run by a slumlord who they've sued over "atrocious living conditions." Reporter Emma Henchliffe decided to pay attention to what happened to the ousted tenants, finding that the ones with a felony record had a terrible time locating new places that would take them. "Individual owners have the right to accept and reject applications as they choose, but the lack of alternatives for tenants who do not meet owners' standards causes many former offenders to end up at places like Crestmont," she wrote. "Some apartments where [one tenant] applied took her application fee and never got back to her." When you consider the volume of felons Texas produces - we release more than 70,000 prisoners from TDCJ every year - this is a much more important issue than one would think from the amount of coverage it receives. I was glad to see this article.

No surprise: 'Stingrays' really do intercept content
Turns out, contrary to public assertions by law enforcement, Stingrays are indeed able to intercept calls as well as cell-phone metadata, it's now been proven. This was obvious to anyone who thought about it: The devices trick your phone into routing through a fake cell phone tower; clearly they were intercepting the whole call, not just metadata. And experts have been telling us this for a while. Still, nice to see it confirmed, it's one less thing to argue about.

NOTE: A brief item about a murder case in Denton was removed from this roundup after a commenter informed me that the underlying news article improperly attributed a court action to DNA mixture protocols when the real issue was unrelated. Grits apologizes for the error and will perhaps revisit the topic when more accurate information is available.

How to reduce police ambush deaths

Based on a new DOJ analysis, the Washington Post reported (10/27) that the number of ambush assaults against police is on the rise, even as police officers' on-duty deaths remain fairly steady and overall assaults against officers are down. When one looks at the details of the study itself, however, it emphasizes much more than the Attorney General did how extremely rare ambush deaths are in practice. Even more interesting to this writer, though, was what the DOJ report had to say about strategies that might reduce police ambushes:

Fewer police ambushes. We found three organizational factors that were associated with reduced numbers of ambushes against the police. The effect of requiring new officers to have at least some college education was a 54 percent decrease in ambush assaults. In addition, agencies  that evaluated new hires on conflict management experienced, on average, 43 percent fewer ambushes than those that did not. Last, in-car cameras, measured by the ratio of cameras to patrol vehicles, were associated with fewer ambushes. Police agencies that had a camera in every patrol car experienced, on average, 61 percent fewer ambushes than those that did not.

Besides those three things - better educated cops, screening recruits for de-escalation skills, and cameras in patrol cars - there was no other statistically significant, causal factor identified by DOJ which reduced ambush attacks. (See pp. 35-36 of the pdf.)

Think for a moment: Why would more educated cops or screening for de-escalation skills reduce ambushes, much less cameras in patrol cars? To the extent these factors correlate strongly to fewer ambushes, does it follow that less-well educated cops without de-escalation skills create greater risks of ambush deaths?

This is hard to understand because the data appear to blame the victims. To the extent we're talking about episodes like Deputy Darren Goforth's murder in Houston, it's difficult to see how greater education or de-escalation techniques might have prevented his death.

Still, the correlations are so strong for those three elements, there must be some explanation. Regardless of the reason, this finding should be of interest to the Texas Senate Criminal Justice Committee, which received an interim charge related to investigating ways to reduce police officers' on-the-job deaths. Those three suggestions are a good place to start.

City of Austin sued for illegally jailing poor debtors

Modern-day debtors’ prisons, where municipal and JP courts routinely jail people too poor to pay fines and fees from traffic tickets and other petty offenses, have been a hot topic since the discriminatory policing practices of Fergeson, Missouri and other St. Louis suburbs were exposed last year. 

Yesterday the Texas Fair Defense Project, the UT Civil Rights Clinic, and the law firm Susman Godfrey filed a federal lawsuit to stop the City of Austin from unconstitutionally jailing people for municipal court debt. This is the first class action lawsuit of its kind to be filed in Texas, and along with a recent investigative piece by BuzzFeed on similar issues in the El Paso Municipal Courts, has brought the conversation about how justice is meted out for the most petty of criminal offenses to Texas.

Regardless of what happens in the court case, the practice of jailing people unable to pay their fines and fees is just plain bad criminal justice policy.  It's a lose, lose, lose. The debtor loses their job, their home and possibly their children or other family connections. Their children and other dependents lose the economic and emotional support that the debtor had provided and increase their dependence on public benefits and social services. The city, county and state government have increased costs and decreased tax revenue, due to the debtor losing their job and the increased burden on public benefits and social services. 

And county taxpayers foot the bill for the jail housing the debtor. By our calculation, that bill could be $60,000 a month for Travis County based on debtors ordered jailed by the City of Austin alone.

I hope this litigation creates an opportunity to rethink how things have been done in the past and change business as usual in municipal and JP courts for the future.

MORE: See coverage of the new lawsuit from BuzzFeed News and the Austin Statesman, as well as BuzzFeed's related coverage from El Paso.

* Disclosure - This post was authored by Rebecca Bernhardt, Executive Director of the Texas Fair Defense Project and attorney for the Plaintiffs in Gonzales et al. v. City of Austin.

Grits' note: Readers, Becky is one of several wonderful new writers Grits will be welcoming on board in the near future to bolster my own waning content and provide some new perspectives. Becky's a fine lawyer and a veteran civil rights advocate who I've known for a decade or more. She's a valued friend who this spring succeeded our pal Andrea Marsh as executive director at the Texas Fair Defense Project. So please welcome Becky and treat her kindly. I'm grateful she agreed to write here and thrilled she decided to kick things off with such an important announcement.

Grits in New Orleans: On 'Criminal Justice and the Press'

Thanks a bunch to our pal Vikrant Reddy and his staff at the Charles Koch Institute for extending an invitation to your correspondent to be on a dinner panel on "Criminal Justice and the Press" next week at their conference in New Orleans. The other panelists are Reihan Salam, who's executive editor at National Review, and Conor Friedersdorf, a staff writer at The Atlantic. So they've placed me in esteemed company for a lowly blogger. Gracias, amigos. 

Normally Grits eschews the conference circuit, but this is the first such national event put on by a major conservative funder and the presenters, who include a healthy Texas contingent, represent remarkable ideological diversity compared to most such gatherings, which makes it more interesting for me. Looks like a neat event and, naturally, Grits will write up the most entertaining bits upon my return for the benefit of those who can't make the trip.

Innocence work here, there and yon

Big day for my employers at the Innocence Project of Texas today:

Prosecutor faces interrogation over Brady
In Dallas, IPOT board chairman Gary Udashen questioned a former prosecutor accused of withholding Brady material in the 1999 murder convictions of Dennis Allen and Stanley Mozee (Mr. Allen is an IPOT client; Mr. Mozee is represented by the national Innocence Project). After prosecutors and the trial judge recommended relief, the Texas Court of Criminal Appeals ordered the trial court to put the prosecutor on the stand and ask him why he failed to turn over evidence of deals with jailhouse informants. That's what happened today.

DNA mixture notification snafu
This afternoon, IPOT's legal director Mike Ware attended a Forensic Science Commission work group discussing notification and indigent defense challenges related to defendants convicted based on erroneous DNA mixture protocols. (See prior Grits coverage.)

Exoneration Commission: What issues might it investigate?
See recommendations drafted by your correspondent on behalf of the IPOT for the Timothy Cole Exoneration Review Panel suggesting issue areas for possible study based on an examination of recent innocence cases. The commission's first meeting is Thursday afternoon in Austin.

Tack on the fact that we sent out a fundraising email this morning and it's been quite a busy day.

George Will on why Republicans should support criminal-justice reform

Grits hopes Texas' Governor, Lt. Governor, and other state leaders all read George Will's column in yesterday's Washington Post titled "The GOP's justice reform opportunity," which opened:

The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African-American vote. To this end, they need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.

Here's the article he's referencing from the Georgetown Law Review by Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. Grits recommends it highly, but at a minimum GOP leaders should read Will's remarkable summary, which identifies a series of mostly innocence-related public policy reforms he wants Republicans to embrace.

Kozinski advocated greater skepticism of eyewitness accounts and traditional forensics like fingerprints, spectrographic voice identification, arson investigation, and handwriting analysis. He called for recording interrogations and limits on jailhouse snitch testimony. And he suggested defendants falsely confess, as Will put it, "for reasons ranging from a desire to end harsh interrogations, to emotional and financial exhaustion, and to coercive charging of multiple offenses made possible by the overcriminalization of life."

He criticized prosecutorial misconduct, calling for scaling back absolute immunity and creating prosecutorial integrity units. And he suggested "allowing jurors to take notes and ask questions during the trial, and repealing three [federal] felony statutes a day for three years."

Will closed by suggesting a process similar to the one Texas will soon undertake with the Timothy Cole Exoneration Review Commission, whose first meeting is on Thursday of next week (Oct. 29).

Finally, [Kozinski] advocates careful study of exonerations, of which there have been 1,576 since 1989. And for every one, “there may be dozens who are innocent but cannot prove it.” If the error rate is 1 percent, 22,000 innocent people are in prison. If the rate is 5 percent, the number is 110,000. Whatever the number, it almost certainly is disproportionately African-American.

In Texas, according to the National Exoneration Registry, there have been 113 exonerations during the period from 2010-2015 that the Exoneration Commission will study. For a red state to commit to analyzing the causes of false convictions provides solid evidence that Will's suggestion isn't that far-fetched.

If a non-trivial number of Republicans adopted Will's messaging advice in the coming election, it would transform American criminal justice politics. If they were serious about it, and if rhetoric were followed up by deeds, I could see that strategy peeling off African American voters at the margins over the next few cycles. The majority of black folks will remain reliably Democratic for the foreseeable future. But 12 percent is not an over-ambitious goal for the Party of Lincoln. And Will has arguably identified the most likely path for the GOP to achieve it.

Halloween now national PR day for sex-offender registries

It seems like Halloween has become a national PR day for state sex offender registries.

This morning Grits typed the phrase "Halloween sex offender" into Google News and half a dozen stories came up with a link that said 503 more were available if one wanted to "Explore in depth." So the meme appears to have hit critical mass.

As I've written before, "The annual demagoguing over sex offenders at Halloween is a classic example of what security expert Bruce Schneier calls 'security theater,' hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives. The approach is dumb, it's wrong, and it makes the public less safe."

As a partial antidote to this foolishness, check out Michael Hall's excellent story in Texas Monthly about a man on the Texas sex offender registry who is pretty clearly innocent but subject to registry conditions, anyway. The guy's life has been a living hell. Read the whole thing, Mike did a great job with it. MORE (10/28): See a Marshall Project article on Halloween sex-offender restrictions.

Since Grits has addressed this sort of Halloween hype many times in the past, rather than repeat myself I'll refer readers to these prior, related posts:

• Halloween demagoguery on sex offenders in full swing this year
• Texas media waits till last minute for annual Halloween sex-offender hype
• Ignorance, paranoia over phony Halloween sex-offender threat more frightening than ghosts or goblins
• Annual Halloween scare tactic on sex offenders doesn't improve public safety
• More on Halloween sex offender hype
• Pushback beginning on Halloween sex offender hype
• Time for annual Halloween sex offender hype

Compiling new data on Texas police shootings

This year, Texas became among the only states to systematically track peace officer-involved shootings, with agencies filling out a one-page report about each one and sending them to the state Attorney General for publication on the web. (See prior Grits coverage.)

Now, that information has been made available via a new online spreadsheet compiled by Amanda Woog, a super-smart young attorney who clerked for Judge Cheryl Johnson at the Court of Criminal Appeals before working as a policy analyst for the Texas House Criminal Jurisprudence Committee, where Grits first met her this spring. This fall, she took a post as a postdoctoral fellow at the UT-Austin Institute for Urban Policy Research and Analysis; this database represents her first project in that new role.

Ms. Woog graciously agreed to sit down for a podcast to discuss in detail what information is included in these new reports and the other source she's drawn upon for the database, as well as how this information might influence public discussions surrounding police shootings. (See a brief analysis she prepared regarding the new law and its implementation.)

Some of the incidents Woog catalogs have never been publicly reported in the media. And even though the new statute doesn't require departments to report either the name of the officer of the person he or she shot, in many cases she has been able to find that information from other sources. So she's adding a lot of value here for journalists and other researchers. You can listen to our conversation here:

Or else find a transcript of our discussion appended below the jump.

Roundup: Debating de-incarceration, deterrence, DNA, dogma, and death

Here are a few items which merit Grits readers' attention even if I don't have time at the moment to blog on each of them:

Police chiefs for de-incarceration?
Including in Houston and San Antonio ... this is an interesting development.

More coverage of DNA mixture debacle
Nothing new here for Grits readers, but the Austin Statesman has picked up the story. One notices they linked to all the prior MSM coverage on the issue but not the Grits posts which broke the story and provided more detail than mainstream news sources.

Few police officers feloniously killed, assaults on cops down
Reported the Houston Chronicle, "Officer deaths have fluctuated significantly but generally have trended downward during the past century." Further, " assaults against officers have dropped significantly, from 57,000 incidents in 2005 to the roughly 48,000 in 2014, even as the population has grown substantially." According to a national foundation which tracks police officer deaths, "Based on all the factors, it's safer to be a law enforcement officer now than it was 30 years ago."

Depositions scheduled in crime lab retaliation case
Top Harris County officials are scheduled to be deposed next week in a lawsuit by two former crime lab supervisors "who allege Harris County prosecutors retaliated against them for exposing serious flaws in how local police tested suspected drunk drivers." This summer, a federal judge ruled the lawsuit could move forward.

Audit: Craig Watkins misspent asset forfeiture funds
To the surprise of no one, the state auditor just released a report declaring that former Dallas County DA Craig Watkins misspent asset forfeiture funds to pay off a civil settlement from a car accident, private attorneys fees, and other dubious expenses.

Death sentence decline
According to the Texas Tribune, "Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976." Only two new ones so far this year.

Debating deterrence
Parsing the soft evidence behind harsh rhetoric.

Prison Architect, the video game
Just when you thought you'd seen it all.

Why criminal justice reform is a conservative cause
From the National Review.

'Colored' lives matter?
The Waxahachie Light published an article by a local high school student critiquing the Black Lives Matter movement for overstating police brutality against "colored" people! Seriously, "colored" people. I don't blame her so much as the newspaper editors who should have known better than publish such a phrase or to put the youngster in such a position. What were they thinking? As a partial antidote to such puerile foolishness, check out Cosmopolitan's feature interview with the three women who launched the Black Lives Matter movement.

Will Houston PD, DPS begin getting warrants for Stingray use now that feds require one?

Now that the US Justice Department and the Department of Homeland Security have begun requiring agents to obtain search warrants to use "Stingray" surveillance devices (fake-cell phone towers operated by police which trick your phone into routing calls through it), will Houston PD, Fort Worth PD, Texas DPS, and other Texas agencies we don't know about who own those devices start getting warrants, too?

Houston PD doesn't even tell local prosecutors when they use the device, much less seek warrants from a judge. But that approach now diverges significantly from federal practice. Can it be sustained?

The Texas Legislature this year failed to pass legislation by Rep. Duane Bohac and Sen. Craig Estes which would have installed a warrant requirement in state law. But there's an argument the Fourth Amendment to the US Constitution requires a warrant, anyway. So, with the feds backpedaling on the question in the face of numerous court challenges, Texas agencies should probably start seeking warrants, too, or else risk a federal benchslapping down the line.

Good for John Cornyn

This blog tracks neither federal legislation nor D.C. politics, but it sure doesn't hurt those of us fishing downstream to have Texas' senior US senator championing federal sentencing reform, out there declaring on the stump that being tough on crime isn't enough.

Maybe Sen. Cornyn's example will embolden state legislators in Austin come 2017 to follow his lead and directly attack excessive sentencing instead of piddling around the edges of the problem.

Prosecutor to testify over withheld informant deals

Pursuant to a Texas Court of Criminal Appeals order, on Monday in Dallas a former prosecutor will be called to testify regarding deals with jailhouse informants discovered during the habeas process which had never been disclosed to counsel at trial. See a brief announcement posted today by my employers at the Innocence Project of Texas (IPOT).

Dallas County District Judge Mark Stoltz

Dallas County District Judge Mark Stoltz

Dallas District Judge Mark Stoltz ordered the two defendants, Dennis Allen and Stanley Mozee, released on bail last year after agreeing with the District Attorney that exculpatory evidence had been withheld and they deserved relief. But the CCA remanded the case, ordering the trial court to take testimony from the prosecutor in question, which is what will happen Monday.

For more background, see past coverage from the Dallas Morning News and the national Innocence Project, which represents Mr. Mozee. IPOT represents Mr. Allen.

MORE: With Monday's hearing happening so soon before the first meeting of the Timothy Cole Exoneration Review Commission on Oct. 29, it occurred to me it may be helpful to provide links to policy resources on confidential informants related to issues which arise in these two cases and others since 2010 - most notably Richard and Megan Winfrey involving jailhouse informant testimony:

• Russell D. Covey, "Abolishing Jailhouse Snitch Testimony," 2014. 
• The Justice Project, "Jailhouse Snitch Testimony: A Policy Review," 2007.
• Center on Wrongful Convictions (Northwestern University), "The Snitch System," 2005.
• Alexandra Natapoff, "Snitching: The Institutional and Communal Consequences," 2004.
• Alexandra Natapoff, "Beyond Unreliable: How snitches contribute to wrongful convictions," 2006.
• Written testimony by Alexandra Natapoff on law enforcement's use of confidential informants to the US House Judiciary Committee, July 2007
• Robert Bloom, "Jailhouse Informants," Criminal Justice magazine (ABA), Spring 2003,
• Dahlia Lithwick in Slate on the Orange County jailhouse snitch scandal (June 2015).
• Denver Post series (April 2015): See here, here, and here.
• Pittsburgh Post-Gazette series on local "informant mill" (Oct. 2014): See here, here, here, and here.
• Washington Post (Jan. 2015) on the failure to protect informants who cooperate with police. 
• Truthout (March 2015) on a police-run jailhouse informant ring in Detroit.
• IPNY on the use of incentivized informant testimony. 
• IPNY model legislation governing informants.
• Tools for lawyers to challenge informant testimony from the ACLU.
• Snitching.org (Natapoff's blog)