'Prosecutors Are So Dreeeeeeamy!'

Houston attorney and renowned blawgger Mark Bennett says the state bar disciplinary counsel thinks "Prosecutors are so Dreeeeeamy." But when the state bar's disciplinary apparatus expresses such views, Scott Greenfield says forebodingly, it implies "that when one side is ascribed righteousness, the other is doomed."

They're referring to a post on the state prosecutors user forum by State Bar Disciplinary Counsel Deputy Laura Popps, who began by declaring, "Some of you know me from my days prosecuting statewide for the AG's Office," then went on to request notification when local defense attorneys are convicted of crimes. That much might not bear mention, but then she concluded:

I still think prosecutors are the best bunch of people around and I am proud to know so many of you! Keep up the great work!

To which Bennett retorts:

This explains why it’s so hard to get a grievance sustained against a prosecutor: even when they lie, cheat, hide evidence, and send unethical letters to people represented by counsel, they’re still the best bunch of people around.

And, really, can anyone expect a prosecutor groupie aggressively to enforce the disciplinary rules against the best bunch of people around?

"Groupie" might be hyperbole, but one wonders whether the state bar sends similar requests to defense counsel extolling their virtues and asking for examples where judges have ruled prosecutors wilfully withheld exculpatory evidence or sent "unethical letters to people represented by counsel"? And if not, why not?

I'll bet the Texas defense bar could come up with plenty of examples where judges have issued findings of misconduct but the prosecutor was never disciplined, if the state bar disciplinary counsel wants to going to go trolling for cases to investigate, whaddya think?

Helping Pat Crow

This is off topic, but call it a point of personal privilege. I'm about to head out to a benefit for a dear friend, mentor and long-time Austin-based campaign manager Pat Crow, who suffered a stroke last year during heart surgery. Her friends and supporters (she managed 22 political campaigns over the years, including a slew of judicial candidates) are hosting a benefit tonight.

A grass-roots field general of the first order, Pat is one of the folks who taught me the nuts and bolts of political campaigning when I was a young pup. Pat changed my life in all sorts of odd, unpredictable ways, looking back, just from knowing her. Though our political paths diverged after a few years as I began focusing more on criminal justice stuff, she was a truly important figure in my life and it's quite arguable that, if it weren't for Pat Crow, I'd never have set out on the path that, years later, led to the creation of this blog - for good or ill.

Check out an excellent Austin Statesman story on Pat promoting the event, and also an article written by my better half, Kathy Mitchell, who profiled her soon after her stroke for what turned out to be the final issue of the Austin-based Good Life magazine.

If you know Pat (and if you run in Austin political circles, she's hard to miss) but can't make it to the event, go to the gorgeous website established to help her pay back $65K in medical and rehab expenses. Needless to say, given that kind of debt, if you're able, contribute generously.

Thanks for your indulgence ... and now back to our regularly scheduled programing.

CCA Integrity Unit: Eyewitness ID legislation should be highest innocence priority

With all the recent bad publicity surrounding the Texas Court of Criminal Appeals and its presiding judge, it's nice to find cause to mention them in a positive light, merited in this case by the release of a new report by the CCA's Criminal Justice Integrity Unit dubbed its 2008 Annual Report of Activities.

The document was distributed to an email list of people who signed up at their meetings and is not available on the court's web site, I'm told by Judge Hervey's clerk, so I guess that makes its publication a Grits web exclusive. :)

I may later go into other aspects of the report when I have more time, but for now wanted to point out what I considered the money quote from the whole document:

TCJIU recognizes that one of the leading causes of false convictions is erroneous eyewitness identifications. TCJIU urges the legislature to address this issue during this session of the legislature. It is the position of the TCJIU that instituting reforms in the eyewitness identification procedures used by law enforcement agencies throughout Texas should have the highest priority of any efforts in the area of wrongful convictions.

Though the document doesn't refer to specific legislation, the recommendation for making eyewitness ID reform the "highest priority" among innocence bills certainly bodes well for Senator Rodney Ellis' SB 117, which is the main, comprehensive eyewitness reform legislation proposed in the 81st legislative session. Their other policy recommendations were to install more rigorous oversight of forensic labs and "improving the reliability of confessions," possibly including a requirement for "recording the full interrogation, from the Miranda warning onward."

These are all very positive, commendable proposals, so I wonder why the CCA didn't post this document online? You'd think they'd want to promote it a little more with all the bad PR they're been getting lately.

Galveston federal judge pleads guilty, retires in disgrace

I've not been tracking the downfall of allegedly lecherous federal district Judge Samuel Kent of Galveston, who today pled guilty to obstruction of justice charges and announced his retirement. But Mary Flood at the Houston Chronicle brings the news that:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.

Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges.

``Judge Kent believes that this settlement is in the best interest of all involved,'' his attorney, Dick DeGuerin, said after this morning's hearing.

``A trial would have been long, embarrassing and difficult for all involved,'' DeGuerin added.

Senior U.S. District Judge Roger Vinson has imposed a gag order on those involved in the case, but allowed DeGuerin to make his statement to the news media.

Kent, who normally speaks in loud, clear tones, all but whispered his guilty plea at the bench. The court reporter strained to hear what he said.

Kent, 59, was appointed by President George H.W. Bush in 1990 and was the sole district federal judge in Galveston in most of the ensuing years.

This was a disgraceful episode for the federal courts and another black eye for Texas justice. As far as I'm concerned, good riddance to bad rubbish.

MORE: Doc Berman at Sentencing Law & Policy identifies the key issues regarding Judge Kent's sentencing, including, "is the gag order on the victims consistent with the federal Crime Victims Rights Act?"

Why would a county Sheriff need a 'sales' department?

Have you ever heard of a county Sheriff's department with a "sales" division? That's what's needed in Garza County, reports the Lubbock Avalanche Journal ("New jail brings law enforcement closer," Feb. 22), to fill beds in a new jail aimed at profiteering from overcrowding in other counties:

"Our main thing is to get out and be a sales type department to get people to bring us inmate for us to house," [Garza County Sheriff Cliff] Laws said. "Right now it's just getting everything in place and up and running."

Said the Avalanche Journal, "In addition to housing out-of-county prisoners, the facility has also required a doubling of staff to 28." So Garza County has put itself in a position where a new jail will soak local taxpayers with high staffing costs if they can't find more inmates to fill the 96 bed jail.

Pyote facility will downsize, TYC population will 'flat-line'

A couple of recent Texas Youth Commission stories deserve Grits readers attention. First, administrators plan to downsize, but not close the West Texas State School in Pyote, AP reports:

The West Texas State School in Pyote will likely downsize and focus on treatment. About 70 percent of the students in the juvenile prison have chemical dependency problems, officials said.

The Sunset Advisory Committee, a state agency created to eliminate waste, duplication and inefficiency in government, had called last year for the Pyote facility to be closed, citing difficulty in keeping the prison staffed and saying the closing would save $9 million.

Jim Hurley, a TYC spokesman, said Thursday the school's focus would be as a "smaller, more intense treatment facility." He also said the facility will focus on youths from West Texas instead of throughout the state.

"It's the only facility in West Texas," he said for a story in Friday's editions of the Odessa American. "We need a presence out there."

He could not say how many students would be moved from Pyote or how many jobs might be cut.

The facility now houses 84 youths and has 144 employees, 81 of them juvenile corrections officer.

Monahans Mayor David Cutbirth said he liked the idea of focusing on West Texas youths but was disappointed in the planned cuts. He had wanted to see an expansion at the state school about 15 miles west of Monahans.

Cutbirth said one reason given for closing the facility was a lack of available labor.

Meanwhile, the Legislative Budget Board has revised projections from last fall for an increase in TYC's youth prison population. Now they're predicting their numbers will "flat-line," the Statesman's Mike Ward reports:

From a Legislative Budget Board report:

“The residential population is expected to bed much lower than the population in previous fiscal years . . . Based on 2008 intakes, it is assumed (the Texas Youth Commission) will receive 2,169 intakes per year for fiscal years 2009 through 2014.”

That’s down from 2,994 in 2007, and even more in the previous years.

The Youth Commission now holds roughly half of the youths that it did before a sweeping reform bill in 2007, in the aftermath of a scandal over sex-abuse and an official cover-up.

Keller must pay for her own lawyer on judicial misconduct charges

The Houston Chronicle's Clay Robison says the Court of Criminal Appeals Presiding Judge, Sharon Keller, may have to dig into her own pocket to defend against charges from the Judicial Conduct Commission:

I doubt that many people will shed tears, but Texas Court of Criminal Appeals Presiding Judge Sharon Keller may have to pay her own legal expenses to defend herself against charges she improperly shut the door on a condemned inmate's last-gasp appeal.

The judicial misconduct charges brought against Keller last week by the Commission on Judicial Conduct could result in her removal from office and, if she fights them, many thousands of dollars in legal bills.

Officeholders often can use political funds to pay lawyers. But Keller, according to a filing last month with the Texas Ethics Commission, has no money in her political account. State law also prohibits Keller, who won't be up for reelection until 2012, from raising any political money before June 2011. And any donation of legal services could be construed as an illegal political contribution.

The judge's attorney, Chip Babcock, has asked the judicial conduct commission to pay her legal expenses.

If the answer is no, will Keller fight, or resign?

Meanwhile, perhaps in reaction to Keller's predicament or, more likely, in reaction to Democratic judicial victories in Houston, Robison reports that "Sen. Dan Patrick, R-Houston, has filed a bill to ban straight ticket voting only in judicial races."

In a Grits for Breakfast reader poll last week, among 368 respondents, 50% said Judge Keller should be impeached by the Legislature and removed from office. Another 23% believed she should be disbarred, while 9% thought a public reprimand was punishment enough.

House criminal justice committees starting to meet

While the first meeting of the Texas Senate Criminal Justice Committee hasn't been scheduled yet, in the House of Representatives, beginning tomorrow, criminal justice committees will begin their organizational meetings and likely start hearing bills next week:

House Appropriations, Criminal Justice Subcommittee (Debbie Riddle, chair)
February 23 , 2009 @ 8:00 A.M. in E1.026
February 24 , 2009 @ 8:00 A.M. in E1.026

House Public Safety
February 23 , 2009 @ 2:00 P.M. or upon final adjourn./recess in E2.014

House Criminal Jurisprudence
February 25 , 2009 @ 2:00 P.M. or upon final adjourn./recess in E2.028

House Corrections
February 26 , 2009 @ 8:00 A.M. in E2.010

Innocence cases demand legislative reforms

Author Joyce King, a boardmember of the Innocence Project of Texas, had an op ed in yesterday's Austin Statesman calling for legislative reforms to prevent false convictions and adequately compensate those who've been cleared by DNA evidence:

Now that DNA evidence has posthumously exonerated [Timothy] Cole, he is the first wrongfully convicted man in Texas to have his good name restored to surviving family. Even the victim who mistakenly identified Cole participated in rewinding the hands of justice.

I came to Austin to witness legal history and also to beg lawmakers to work with us in making our state a national model of justice, instead of the nation's image of injustice.

That's why Cole's story must not be an ending. It is a new beginning as the Innocence Project of Texas seeks more partners to redefine Texas justice. ...

In Austin, we presented a humble case for justice, one I hope lawmakers will not ignore. Our proposed innocence legislation includes:

Improving eyewitness identification procedures

Recording police interrogations

Better screening and corroboration for informant testimony

Improved access to post-conviction appeals based on discredited forensic science

Improved compensation and expansion to include posthumous exonerations

Currently, the state compensation is $50,000 for every year of wrongful incarceration. But exonerees must be eligible and pardoned by the governor to even apply. The money can then be taken in a lump sum payment, which is exactly what Wiley Fountain did. Today, he is exonerated and homeless.

Because compensation is taxed at nearly 40 percent, coupled with legal fees and living expenses the men have, $50,000 dwindles rapidly. Never mind what a life is worth and the real value of a dollar in today's economy.

Firsthand exonerees have hell finding jobs and finding their place in a faster-paced, higher-tech world than the one they knew 10, 15, 25 years earlier. No one will lease them apartments or hire them because it takes an eternity to expunge records. There are a myriad of state services to help convicted felons, including job training, health benefits and housing assistance. Exonerees are not entitled to these services because they are innocent. What an insult.

Long after overdue justice is delivered and smiling defendants with their proud attorneys exit courtrooms, exonerated men face multiple hurdles to avoid the fate that befall Wiley Fountain.

My job as an justice-loving volunteer is to ensure that exonerees have the tools and skills to become productive members of society. If they are to do better, Texas must do better.

MORE: See additional discussion of the Timothy Cole case from The Texas Observer.

Debunking myths about incarceration, and promoting some

Doc Berman points us to an article in Slate by Prof. John Pfaff of Fordham University law school identifying what he says are "Five Myths About Prison Growth Dispelled." The piece makes for an interesting starting point for discussion, but also promotes some mythology of its own.

The first "myth" Pfaff describes is entirely on point, disputing the contention that "Long sentences drive prison growth" Says Pfaff, "Our data on time served is imperfect at best, but it appears that the time served by the median prisoner is about two years, sometimes much less." That more or less jibes with Texas' experience (see pp. 36-37 of TDCJ's annual statistical report for data on time served). Pfaff writes:

So what is actually driving prison population growth? Admissions. Far more offenders who in the past would have received nonprison sentences are being locked up for short stints, driving up the overall population. Stop admitting as many people, and the prison population would shrink rapidly. Cutting back on long sentences is far less likely to have the same meaningful effect.

This is an excellent observation - the enormous volume of prisoners we see today comes from applying incarceration to more petty offenses than in the past, not from punishing people for longer periods. In fact, large numbers of admissions for penny ante crime tends to push more serious offenders out of the system.

The second "myth" Pfaff describes, though, doesn't seem so mythological here in Texas: That "Low-level drug offenders drive prison population growth." Pfaff claims that "most of the drug offenders are in prison for distribution, not possession," but that's not true here at all.

Among Texas' state jail felons convicted of drug offenses, 87.3% are in for possession of less than a gram of a controlled substance according to TDCJ, while 58.6% of more serious drug cases were possession-only offenses, not for "distribution." Perhaps it's true that some or even many of those charged with "possession" were really full-blown drug dealers, but that assumes facts not in evidence; it's not the offense for which most of them were convicted.

Pfaff's third "myth" is that "Technical parole and probation violations drive prison population growth," but once again, for Texas that's just not accurate (I can't speak for elsewhere). According to the Council of State Governments, "Between 1997 and 2006, the number of probation revocations to prison [in Texas] increased 18 percent, despite a three percent decline in the total number of persons under community supervision."

Indeed, Texas' experience on this score controverts both Pfaff's second and third "myths," since drug offenders make up the largest portion of those who enter prison because their probation is revoked. Meanwhile, reduced probation revocations are credited with Texas' successful efforts to stave off a projected need to build new prisons in recent years.

If reducing revocation rates empirically reduced Texas' rate of prison population growth, it stands to reason higher revocation rates would increase it. It's possible that Pfaff's assertion would be more accurate if he'd limited the observation to parolees, but Texas' experience with probation precisely contradicts his assertion.

Pfaff's attempts to dispel the fourth "myth" he describes are the most ... well ... mythological. He contends that the United States has not "newly diverged from the rest of the world on punishment," declaring that "if we look back historically at the lockup rate for mental hospitals as well as prisons, we have only just now returned to the combined rates for both kinds of incarceration in the 1950s."

Certainly it's true that a large number of Texas prisoners are mentally ill, but Pfaff's historical comparison ignores the history of who populated mental institutions in the first half of the 20th century compared with who's in prison today. Yes, many more people were locked up in mental institutions in 1950 than now, but US mental institutions back then were mostly filled with white women, while in today's prisons it's black men who are demographically overrepresented.

The dissolution of Jim Crow had a lot more to do with high incarceration rates than reduced reliance on mental hospitals, but apparently that's not the history they're teaching at Fordham.

Pfaff's fifth "myth" is a red herring, an argument he proposes and debunks that nobody really makes out in the world: "The incarceration boom has had no effect on crime levels." Except nobody claims that.

Having set up a straw man, Pfaff debunks this "myth" by declaring that "The best numbers available, controlling for a host of challenging statistical problems, suggest that the growth in prison populations contributed to up to 30 percent of the crime drop during the 1990s." Of course, "up to 30%" means most estimates are actually lower.

Even so, few serious observers I'm aware of claim incarceration has "no effect" on crime. Instead, the more common argument is that most crime reduction witnessed in the '90s and since the turn of the century was not due to high rates of imprisonment - a fact with which Prof. Pfaff entirely agrees.

He argues that prisons are "not the most efficient tool we have" to reduce crime. "A dollar spent on police, for example, is 20 percent more effective than a dollar spent on prisons," he says. (And that's if you accept the highest estimates for prisons' crimefighting effectiveness.) So Pfaff is claiming to debunk a "myth" promoted by critics of high incarceration rates, while actually adopting those critics' position and claiming they said something they didn't.

In addition, Pfaff ignores research showing that, after a certain point, incarceration can actually become a counterproductive factor causing increased crime. According to a 2007 meta-study by the Vera Institute:

Raymond Liedka, Anne Piehl, and Bert Useem have confirmed, moreover, that increases in prison populations in states with already large prison populations have less impact on crime than increases in states with smaller prison populations. States experience “accelerating declining marginal returns, that is, a percent reduction in crime that gets ever smaller with ever larger prison populations,” they argue. Thus, increases in incarceration rates are associated with lower crime rates at low levels of imprisonment, but the size of that association shrinks as incarceration rates get bigger. Eventually, they say, there is an “inflection point” where increases in incarceration rates are associated with higher crime rates. This inflection point occurs when a state’s incarceration rate reaches some point between 325 and 492 inmates per 100,000 people. In other words, states with incarceration rates above this range can expect to experience higher crime rates with future increases in incarceration rates.

In other words, in a state that incarcerates relatively few people, there are higher safety gains from relative increases in incarceration. But in a state like Texas where more than 1 in 100 are already in prison 4.6% of adults are under control of the justice system, increased incarceration produces much less public safety bang for the buck and may even increase crime by imposing untenable collateral consequences on more and more low-level offenders.

Pfaff's article is a useful starting point for discussing soaring incarceration rates and how to reduce them - particularly his observation that admissions, not sentence length, drive expanding incarceration rates. But I'm afraid he's promoted nearly as many "myths" in this piece as he's dispelled - at least as far as the Texas is concerned.

Polygraphs are junk science no matter who uses them, or why

If polygraphs are so unreliable they're not admissible in court, are they really a good tool for pre-employment screenings for law enforcement? The Austin Statesman offered up an alarmist report this week ("Admitted scofflaws, poly flunkers among DPS recruits," Feb. 19) that, at the Department of Public Safety:

Some members of the current recruit class of more than 100 failed polygraph tests on their background.

“More than a handful” were rejected by other law enforcement agencies before they applied at DPS.

Others have been promoted from the training academy and put to work despite a recommendation that they be dismissed.

Some recruits in the past even got in despite admitting criminal behavior of some type during interviews.

“Wow!” exclaimed Commissioner Ada Brown of Dallas.

Despite some recruits’ deception on the agency’s polygraph tests, “you give him a badge? I have a problem with that.”

Certainly it's problematic if troopers are given a badge over the recommendation of those who trained them, or if they've admitted to serious, past criminal activity.

But if someone was rejected by another department because that agency thought they found a better candidate, that shouldn't in and of itself disqualify someone from working for DPS. (If they were rejected for some specific cause, that's a different matter.)

Equally unfair would be to rely on polygraph testing, which amounts to junk science at its worst, to deny potential troopers employment. I don't know why anyone still thinks these things are reliable. As one critic put it, "There's something about us Americans that makes us believe in the myth of the lie detector. It's as much of a myth as the Tooth Fairy."

I'm as concerned as anyone on the Public Safety Commission about misconduct by state troopers, which is why I believe DPS' Internal Affairs division should be substantially beefed up. But denying someone employment because they "flunk" a polygraph test - or for that matter relying on polygraph results to discipline officers - is bad public policy with no legitimate scientific basis.

IMO, DPS should toss its polygraph machines on the junk pile and instead focus on more exhaustive background checks performed by actual human beings if they want to prevent bad apples from becoming state troopers.

The beginning of the end for Judge Sharon Keller?

Analyzing the charging document against Sharon Keller from the state Commission on Judicial Conduct, Paul Burka predicts that the Presiding Judge of the Texas Court of Criminal Appeals, is "Gone Baby, Gone." After analyzing the details of charges against here, he writes:

Stick a fork in her: She’s done. There is no way Keller can survive this. The statute governing the Commission on Judicial Conduct states:

A voluntary agreement to resign from judicial office in lieu of disciplinary action by the commission shall be public upon the commission’s acceptance of the agreement. A judge may ask the Chief Justice of the [Texas] Supreme Court for appointment of a special court of review. (There is no ordinary right of appeal.)

Keller has three choices: resign, be removed by the Commission, or be impeached. The odds against her serving out her term, which expires in 2012, are astronomical. My money is on resignation. The sooner the better.

What do you think? Will Keller resign? Is it possible the Commission on Judicial Conduct will force her ouster? Or are impeachment proceedings remotely likely to proceed?

My own view is that the answer to all three questions is probably "no," though I think Judge Keller should have resigned in disgrace a year and a half ago when all this first came down. But she clearly has plenty of chutzpah and I'd guess she'll stay on the job, similar to Illinois Governor Blagojevich, until she's dragged out kicking and screaming.

What's more, the Commission on Judicial Conduct is hardly known for ousting powerful, high court judges, though I'd be (pleasantly) surprised to see them do so now. And the GOP dominated Senate would never convict her, even in the (highly) unlikely event she was impeached in the House.

My guess is still that the best chance to actually get rid of Sharon Keller won't come till she's up for reelection in 2012. But by then, no matter what happens, she'll have a big, fat target on her forehead and could easily become the first statewide Republican candidate in more than a decade to lose their job to a Democrat at the ballot box.

MORE (Updated 2/21):

• Rick Casey at the Houston Chronicle says Keller should hope for more mercy than she has shown to defendants in the past.
  
• Lon Burnam said "if [Keller] had any integrity at all, in two weeks, she’d resign."
• The Houston Press said recent events affirm their decision to label Keller 2007 "Turkey of the Year."
• The Dallas Observer's Unfair Park blog notes that "incompetence" is one of the charges alleged by the Judicial Conduct Commission.
  
• The Fort Worth Star Telegram says, "There’s little question ... Keller acted harshly, unilaterally and inappropriately."
• The New York Times says it's unusual for the Judicial Conduct Commission to go after a judge for closing access to the courts, predicting Keller may lose her job.
• The Chicago Tribune says "refusing to keep court open could lead to [Keller's] dismissal."

Ogden: DPS must do more about officer misconduct

There's an odd zeitgeist developing at the Texas capitol making me think the Lege may be more interested in preventing and investigating police misconduct than at any time in recent memory. I was already surprised when Governor Perry's homeland security chief this week backed Sen. John Carona's idea to create a law enforcement integrity unit at DPS.

Then at a Senate Finance Committee hearing yesterday, Chairman Steve Ogden raised questions with Department of Public Safety bigwigs about threats to "the reputation and integrity of this department." (See the video, beginning at 2:17:30.)

Pointing out that the agency has proposed no "exceptional" budget items aimed at reducing misconduct and corruption, Ogden opined that "Nothing could be more damaging to the DPS than to have some sort of scandal or criminal conduct inside the DPS that basically destroyed the DPS and erodes the public confidence in this agency."

Ogden continued, "From time to time, issues come before all of us about a trooper that's selling drivers licenses, a trooper that's falsifying tickets, a trooper that's smuggling drugs. We never know what happens. It seems like it becomes an issue of whether the local DA is going to prosecute or not and half the time the DA doesn't, y'all are investigating, and really what I hear is, 'We can't do anything but fire the guy.'"

Ogden wanted to know, "What are you specifically doing to guarantee the integrity of your department and to ensure that the bad apples are weeded out?"

DPS has 3,800 commissioned officers at the agency, the chairman was told, but Internal Affairs is only staffed with one captain and five investigators - not nearly enough to cover the entire state. DPS plans to expand Internal Affairs "drastically," probably renaming it the Office of Professional Responsibility, Inspector General or something else. DPS told the committee they would like to expand IAD staff and place investigators around the state instead of only in Austin, but the agency requested no new money to support such a plan.

DPS' board chair admitted internal oversight presently is "weak, at best." Ogden asked DPS to bring him a new budget item reflecting what the agency would need "to guarantee ... the professionalism and integrity of this agency. I know it's not going to be free."

I'm pleased and surprised to hear Republican leaders like Steve Ogden and John Carona expressing such serious concerns about police misconduct. That issue hasn't gained much traction at the Lege in recent years, and if anything serious is going to happen on the subject, it will definitely require bipartisan support.

Prosecutor who withheld Brady material will run for judge

Yesterday I noted that Third Court of Appeals ruled that Travis County prosecutors in a case against alleged murder accomplice Laura Hall acted "wilfully in failing to disclose [exculpatory] statements" to Hall's defense team, but neither the opinion nor the media coverage informed us which prosecutor was responsible for the violation.

It turns out, though, the lead prosecutor in the case was Bill Bishop, who coincidentally announced last week that he plans to run in the Democratic primary next year against Judge Charlie Baird for his seat on the 299th District Court in Austin.

So we have the judge who presided over the Tim Cole exoneration versus a prosecutor who an appellate court said "wilfully" failed to disclose Brady material in a high-profile murder case.

My view is that Mr. Bishop should be publicly sanctioned by the state bar if not fired by the DA's office for withholding evidence. Certainly there's no way Democratic primary voters should elevate him to a judicial seat with that kind of recent record.

DPS wants cell phone ban, expand "driver responsibility fee"

The Department of Public Safety at a Senate Finance Committee meeting this morning said they not only want to ban Texas drivers from using wireless communications in their vehicles - including both cell phones and hands-free devices - the agency hopes to subject cell phone using drivers to massive civil fines in addition to the cost of a ticket.

The idea of banning cell phones is misguided enough; after all, driving while talking on the cell phone is no more distracting than changing out CDs or fiddling with the radio, not to mention, putting on makeup, shaving, eating, disciplining kids in the back seat, or any number of other activities that routinely distract drivers. But DPS wants to add this new offense to the list of those on which the state imposes misnamed "driver responsibility fee." That's a particularly dumb idea given that those costs are so high that 70% of driver responsibility fees go unpaid.

The Legislature needs to scale back driver responsibility fees to reduce the astronomical rates of noncompliance, not exacerbate the problem by applying the fee to new, relatively trivial offenses.

Will state bar discipline prosecutor who withheld Brady material in Austin murder case?

I'm amazed to see yet another gruesome murder case in Austin tainted by apparent prosecutorial misconduct. The Texas Cable News Network reports that "The 3rd Court of Appeals upheld Laura Hall's conviction but threw out her five-year sentence it said prosecutors withheld material evidence in the case." Hall had been convicted as an accomplice for hindering apprehension after the brutal murder of a UT-Austin student.

According to the opinion, the Third Court of Appeals found that "the State acted wilfully in failing to disclose the statements." The opinion doesn't name the prosecutor the court found improperly withheld information, but the result is certainly a black eye for the Travis County DA.

Relatedly, I noticed recently that the state bar's Office of Chief Disciplinary Counsel is scouting around for criminal defense attorneys who should lose their licenses over criminal convictions, posting requests to the prosecutors' user forum asking for recommendations whose bar license to pursue.

One wonders, in cases like Laura Hall's where courts have already found "wilfull" Brady violations, whether the state bar will just as aggressively seek to discipline prosecutors who engage in misconduct? History suggests, probably not. But if they did, maybe it wouldn't happen so often.

SEE ALSO: More detail from the Austin Statesman.

Governor appoints anti-sex toy crusader to parole board

Normally, the Texas Senate rubber stamps the Governor's appointments to the Board of Pardons and Paroles, but one of Rick Perry's three appointees announced last week perhaps deserves closer vetting by the Senate. According to the Governor's press release:

Shanda G. Perkins of Burleson is a retired banking executive. She is a member of the United Way of Johnson County Board of Directors and Burleson Lions Club. She is also director of the Johnson County Chamber Summit, and is a member and past ambassador of the Burleson Chamber of Commerce. She also volunteered as a youth pastor, counselor and Sunday school teacher at Lighthouse Church. Perkins replaces Jose Aliseda of Beeville.

That doesn't explain, though, why she's being appointed to this slot. As far as I can tell, Mrs. Perkins' sole experience in the criminal justice realm stems from a personal morality crusade against the sale of sex toys in Johnson County that led to the 5th Circuit Court of Appeals overturning Texas' law on the subject.

She's so tough on crime, in other words, she's tough on crimes the federal courts say cannot exist because they're acts protected by the First Amendment. But Governor Rick Perry thinks she'll make fair decisions on the parole board? (Photo via Unfair Park.)

The other two parole board members named were reappointed veterans, board chair Rissie Owens and Juanita Gonzalez of Round Rock. I frequently disagree with Rissie Owens, who as presiding officer exercises significant control over the board's direction, but I'd never say she's unqualified. In Mrs. Perkins' case, though, I fear the Governor is putting politics over what's best for the state's troubled prison system.

UPDATE: It turns out Mrs. Perkins has been busy lately distributing unsigned attack flyers against Kay Bailey Hutchison on behalf of Governor Perry claiming the senator and Barack Obama are aligned on abortion. The Star-Telegram's Poli-Tex blog said, Perkins "described herself as a Tarrant and Johnson County chair for the Perry campaign."

New York Times: Keller be gone

Reacting to the recent suggestion that Texas Court of Criminal Appeals Presiding Judge Sharon Keller should be impeached for ordering a clerk not to accept a tardy, last-minute death penalty appeal in 2007, the New York Times editorialized this morning that, "If the facts are as reported, Judge Keller should be removed from the bench." According to the editorial board at the Grey Lady, it would require "monumental callousness, as well as a fundamental misunderstanding of justice, for a judge to think that a brief delay in closing a court office should take precedence over a motion that raises constitutional objections to an execution."

Unfortunately, not only are the facts as bad as the Times reported, they're actually worse. Judge Keller did indeed tell a clerk to inform defendants, "We close at 5," when computer problems delayed a last-minute filing with an execution looming. Making the matter even more egregious, it wasn't her decision to make. By rule, the court had appointed a duty judge, Cheryl Johnson, to make all decisions about the case in its final hours. Judge Johnson was "angry" at Keller for usurping her authority and said later she would have ruled differently.

The more I see this subject debated, the more I think impeachment, though unlikely, may actually be justified - not as some culture-war style anti-death penalty jihad, but in response to egregious, overt judicial activism. Keller really did insert her own political agenda over the rules of the court and the interests of justice; it was not the first time, either; it was just the last straw.

BLOGVERSATION: Patricia Hart says the New York Times got it right. QuickLaw agrees, and Impolite Company hopes impeachment proceedings go forward. Mark Bennett is glad the Commission on Judicial Conduct has grown some backbone. Scott Greenfield hopes this will be a warning to other judges.

RELATED: The Austin Statesman brings word that the State Commission on Judicial Conduct has finally decided to act on a complaint (pdf) against Judge Keller, reporting that:

The state judicial ethics commission Thursday charged Sharon Keller, the presiding judge of the state’s highest criminal court, with violating her duty and bringing discredit upon the judiciary when she declined to allow a death row prisoner to file an after-hours appeal in 2007.

Keller will face a public trial to answer the charges and could be removed from office, reprimanded or exonerated.

“Judge Keller’s willful and persistent failure to follow (her court’s) execution-day procedures on Sept. 25, 2007, constitutes incompetence in the performance of duties of office,” according to a notice of formal proceedings from the state Commission on Judicial Conduct.

The Texas Supreme Court will appoint a special master — a sitting judge from outside Travis County — to preside over Keller’s trial, which has yet to be scheduled.

NAS report: Many forensic disciplines prone to error

The National Academy of Sciences has published its long-awaited report critiquing forensic science titled "Strengthening forensic science in the United States: A path forward." Go here for a preview and ordering information. According to the accompanying press release:

Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence. And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods. Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization -- in other words, to "match" a piece of evidence to a particular person, weapon, or other source. But with the exception of nuclear DNA analysis, the report says, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

What's more:

there has been little rigorous research to investigate how accurately and reliably many forensic science disciplines can do what they purport to be able to do. In terms of a scientific basis, the disciplines based on biological or chemical analysis, such as toxicology and fiber analysis, generally hold an edge over fields based on subjective interpretation by experts, such as fingerprint and toolmark analysis. And there are variations within the latter group; for example, there is more available research and protocols for fingerprint analysis than for bitemarks.

Nuclear DNA analysis enjoys a pre-eminent position not only because the chances of a false positive are minuscule, but also because the likelihood of such errors is quantifiable, the report notes. Studies have been conducted on the amount of genetic variation among individuals, so an examiner can state in numerical terms the chances that a declared match is wrong. In contrast, for many other forensic disciplines -- such as fingerprint and toolmark analysis -- no studies have been conducted of large populations to determine how many sources might share the same or similar features. For every forensic science method, results should indicate the level of uncertainty in the measurements made, and studies should be conducted that enable these values to be estimated, the report says.

Not particularly cheap, at $36.66 plus shipping, nor, one imagines, will it be a light read, but I've already ordered my copy.

Related Grits posts:

• USDOJ should embrace, not fight forensics based science
• US justice system commonly relies on shoddy forensic 'science'

Gov's homeland security chief backs law enforcement integrity unit

Drug "cartels increasingly recruit law enforcement officers on both sides of the border," said the Governor's homeland security chief Steve McCraw at a meeting this morning of the Senate Transportation and Homeland Security Committee. Official corruption, including on the US side, is a "pervasive problem at all levels," he said; "it's not just a Mexican problem.

Indeed, maybe we shouldn't think of transnational smuggling gangs as "Mexican" cartels. McCraw told Sen. Rodney Ellis the "command and control elements" of transnational criminal gangs are probably located closer to the senator's district in Houston than the actual border. Conversely, he said Texas-based gangs have been documented engaging in drug-related violence south of the river.

McCraw advocated creation of a new investigative team that would "leverage the core competency" of the Texas Rangers to work with prosecutors from the state Attorney General's office to "aggressively target law enforcement corruption" at all levels, with or without cooperation from our "federal partners."

McCraw's statements seem to add Rick Perry's gubernatorial imprimatur, as well as a populist spin, to Chairman John Carona's proposal to create a law enforcement integrity unit at DPS (the agency over the Rangers) to investigate official misconduct. Combating US-side corruption is an important missing piece of the puzzle, so I'm glad to hear the Governor's man promoting it. This might also be an excellent way for the Governor to spend some of those new Byrne grant funds just approved by Congress.

See the video from this morning's committee hearing.