Exoneration punctuates need for eyewitness ID reform

As if to punctuate the gravity of the error, the day after the Texas House killed legislation to require eyewitness ID reforms among police, Texas will see its 40th DNA exoneree (the 20th from Dallas) walk out of court a free man today. The Dallas News ("DNA testing clears Dallas County man in 1986 rape of SMU student," May 27) reports that:

Jerry Lee Evans matched the description of the man who abducted and raped a woman in Deep Ellum in 1986. He even had a similar speech impediment.

But today Evans, 47, is expected to walk out of the courtroom a free man because DNA testing shows he is not the man who raped an 18-year-old Southern Methodist University freshman at knifepoint.

As science has discovered more about how eyewitnesses really identify suspects, it's become clear, as the Justice Project's Edwin Colfax likes to say, that eyewitness testimony should be considered more like "trace" evidence which shoddy or biased collection methods can easily contaminate. That's what happened in this instance, said the News:

Dallas County prosecutors Tuesday pointed to questionable witness identification procedures as a leading reason for his wrongful conviction.

When the woman looked at a six-picture photo spread, Dallas police officers "were leading and encouraging" her to pick Evans out of the photo lineup, said Mike Ware, who oversees the DA's conviction integrity unit. Officers were also "enthusiastically encouraging" after the woman selected Evans.

The Dallas Police Department changed its policies this year in an attempt to eliminate intentional or unintentional encouragement of witnesses through words or body language. Now, photo lineups are shown by an officer not involved in the case and are shown sequentially.

Given that most Texas departments have no written policies on the topic, more law enforcement agencies need to follow Dallas' lead and create written procedures for photo lineups that require blind administration and other best practices.

'Chubbing' kills innocence bills, and many others, in Texas House

Given that yesterday was a rare weekday when Grits was silent (due to work and familial duties), it was an awfully big news day both in Texas and nationally on the criminal justice front.

I'll post something later about Barack Obama's new US Supreme Court nominee once I know enough about her to have an opinion. SCOTUSBLog is the go-to source on that topic and also on SCOTUS' decision yesterday to overturn Michigan v. Jackson, a case about the right to counsel with significant field implications for how officers interact with suspects.

At the Texas Lege, the news was disappointingly grim. Several key "innocence" bills and other criminal justice reform legislation pending in the House died when the clock tolled midnight last night, though there's a chance some of them can be revived at the last minute as amendments to House bills in the Senate. Basically, partisans were playing a big game of "chicken." No one blinked, so the result was a head-on crash that more or less totaled the 81st legislative session, especially since the House had passed relatively few bills before their final, homestretch run.

That's terribly bad news - an example of badly misplaced priorities by the majority in both parties in the lower chamber. I was frankly disappointed in the whole lot of them for letting this petty matter derail four months of work, leaving issues these bills would have addressed lingering for the next two years. In a state as large as Texas, if the Legislature is only going to meet biennially, I'd like to think legislators understand they have a responsibility to accomplish something when they're in town. (We didn't elect them, after all, to get nothing done.) Instead, everyone is focused on their own re-election or else scoring partisan political points. Voter ID only really interests hard-core partisans on both sides, but of course that's who tends to get elected.

Lots of stuff that really impacts Texans was on the list of now-dead bills in the House, including windstorm insurance and the Department of Insurance Sunset bill. On the issues I follow, the House allowed legislation sitting on its calendar since last week to die on the altar of the voter ID fight which would:

• Require police departments to maintain written policies following minimum best practices on eyewitness identification procedures.
• Encourage recording custodial interrogations of suspects by police.
• Expand access to the courts for habeas writs based on discredited scientific evidence used at trial.
• Restrict police and DA's ability to request "waivers" in asset forfeiture cases when no criminal or civil case has been filed as was done in Tenaha and elsewhere.
  
• Allow big cities to operate needle exchange programs to prevent disease and promote drug treatment.

The Court of Criminal Appeals' Criminal Justice Integrity Unit told the Legislature that passing eyewitness ID reform should be their highest priority for preventing false convictions, but the House decided that could be put off for two years and voter ID was more important. Thanks, guys.

There's one more day to see if the Senate can amend some of this language onto other bills, but even if they do, it won't mitigate how irresponsible it was to shut down the whole legislative session over voter ID. These folks have some seriously screwed-up priorities.

Drug war corruption deja vu

I had a serious deja vu moment last night watching 60 Minutes' expose on a bizarre case involving a multijurisdictional drug task force in Missouri in which some 20 people were arrested in an undercover drug sting before it unraveled in a web of lies and scandal.

Anyone who followed the "Tulia" case in Texas would be hard-pressed not to think of convicted perjurer and former police officer Tom Coleman, whose accusations sent dozens of people to prison before he was proven a liar and his victims were released and pardoned. (That nightmarish episode was also profiled on 60 Minutes a few years back.) A similar drug sting in Hearne, TX has been portrayed on the silver screen in the movie American Violet, which came out last month.

The Missouri case added an even more bizarre twist: The main cop in the story turned out to be an impostor, a fake who got a phony badge off the Internet, printed up his own business cards and convinced the small-town cops he represented a federal agency. Unreal.

This lets you know that locals elsewhere don't provide any more supervision for drug task force officers than did the folks in Tulia and Hearne. We got rid of these troublesome pseudoagencies in Texas and it's about time the rest of the country followed suit.

Voter ID fight puts criminal justice reform bills at risk

In some ways, the comeuppance seems fitting - the Texas Senate early in the session used a parliamentary loophole to get around the so-called 2/3 rule to pass Voter ID legislation, and now House Democrats have created a de facto 2/3 rule to block it. An example of smart political chess, if I ever saw one.

In the meantime, though, several important innocence-related bills and other critical reform legislation is at risk of being sacrificed on the Voter ID altar, as House Democrats "chubb" away on every penny ante bill as a delaying tactic to pressure their colleagues to back off Voter ID. The following bills would have most likely already been voted on by now if not for the delay tactics:

• Eyewitness Identification: SB 117 by Ellis would require police departments to create written policies governing eyewitness identification procedures to prevent false identifications of the type that caused 80% of convictions among Texas' DNA exonerees. The Court of Criminal Appeals' Criminal Justice Integrity Unit said this should be the Legislature's highest priority for preventing false convictions.

• Recording Interrogations: SB 116 by Ellis would encourage (but not require, unfortunately) departments to record custodial interrogations.

• Habeas Writs and Junk Science: A compromise reached with prosecutors on SB 1976 by Whitmire would let appellants overcome the "subseqent writ" hurdle when they bring forward new claims involving new or discredited science that undermines their conviction.

• Post-conviction DNA Testing: SB 1864 by Ellis limiting judges' discretion to deny post-conviction DNA testing and requiring samples be run against the CODIS database to identify possible suspects.

All of these bills come after Voter ID on the calendar, so if House Democrats successfully kill that bill through delay, they'll have killed all this good innocence legislation, too. That must not happen.

The House thankfully already passed the exoneree compensation bill and legislation to require corroboration of jailhouse snitches, but these remaining bills represent the heart of innocence-related policy reforms proposed during the 81st session. If they were to die without a vote at this point, it would be a major blow and a tremendous missed opportunity.

Two other good bills I've been tracking on Grits are in the same boat - sitting on the calendar for days waiting for the chubbing to end:

• Asset Forfeiture Reform: SB 1529 by Whitmire would improve state oversight of seized assets and prevent solicitation of "waivers" for seized assets until a civil suit was filed in district court, aiming to address situations like in Tenaha where the practice allegedly amounted to officially backed highway robbery. This bill actually comes before Voter ID on the Major State calendar, but not by much and could still fall victim to the ticking clock.
  

• Local-option Needle Exchange: SB 188 by Deuell would authorize creation of local-option needle exchange programs to prevent the spread of disease and promote drug treatment among addicts in Texas' large cities and counties. Thirty six states have formally authorized needle exhange operations, and Texas is the only state in the union where they cannot legally operate in some form or fashion.

I'd be quite disappointed if all this positive legislation falls victim to what amounts to a partisan feud.

Voter ID was always going to be dicier in the House than the Senate because of the more or less even partisan split. With the Speaker not voting and Rep. Edmund Kuempel hospitalized recovering from a heart attack, the House is essentially divided 74-74 between Democrats and Republicans.

While in truth, IMO there's probably room for compromise on both sides on Voter ID, in the present environment I don't see that happening. More likely, one side either must give in or else one side's tactical maneuvering will prevail. Personally, I don't have a dog in that fight; I'm a lot more worried about the collateral damage it's causing.

Exploring Texas crime data

Having posted an initial reaction to press coverage of the new Uniform Crime Reporting data (which showed so-called "index crimes" declining by 3% overall in Texas), let's adumbrate a few more details from this new dataset out of the Department of Public Safety:

Despite declining crime last year and for most of the decade, according to the UCR, the number of adult Texans arrested increased by 2% in 2008, just as it increased in six of the last seven years. So Texas arrest trends appear disconnected from crime rates, to judge by these metrics. The number of juveniles arrested, by contrast, declined for the fourth year running.

Among countervailing trends to the overall downward tendency, reported arson offenses increased 6%; one wonders whether that's in any way related to the economic downturn as homeowners look to their insurance company for an easy way out of a difficult financial problem?

The value of stolen property recovered in 2008 was $552 million compared to $2 billion stolen.

One eye-catching statistic buried beneath the headlines: "There were 5,184 officers assaulted during 2008 compared to 4,396 in 2007. This represents an increase of 17.9 percent." That's an enormous increase! I wonder what explains it? An increase that large almost makes me wonder if somebody began reporting who wasn't doing so before or if some other technical glitch explains the numbers. Otherwise, that seems like an incredibly alarming trend. Nine Texas law enforcement officers were killed in the line of duty in 2008, according to the report.

Law enforcement in 2008 began to prioritize drunkenness over drug possession, to judge by a chart on page 2: Arrests for the former increased 6.6% while arrests for the latter declined 4.1% and DWI arrests remained steady. In 2007, the number of arrests for drunkenness and drug possession were nearly equal, with 136,201 for drunkenness and 134,692 for drug possession, but in 2008, arrests for drunkenness topped 145,000 while those for drug possession declined below 130,000. It'll be interesting to see over the next few years if that trend continues.

Grabbing most of the MSM headlines, rates per 100,00 for murder, rape, and robbery declined 5.1%, 6.8%, and 4.3% respectively, while aggravated assaults rose 2.1%. But since aggravated assaults make up the majority of violent crimes - 76,487 out of 123,621 total - the overall number of violent crimes declined just 0.6%.

Some but not all of the increase in agg assaults can be explained by a 3.2% increase in the number of family violence victims; 14.9% of Texas' 208,071 family-violence offenses in 2008 were aggravated assaults, according to DPS. That puts the number of family-violence related agg assaults at around 31,000 out of 76,487, or 40.5% of the total and growing.

For property crimes the most eye popping reduction was motor vehicle thefts, which were stolen (at a rate per 100,000) 10.8% less frequently in 2008 than the year before. The number of arrests for vehicle theft also declined by more than 10%, says DPS, so the reason for the decline must be external, not because they caught more people.

Unfortunately, vehicles are the smallest category of property thefts, so the effect on the overall numbers was mitigated by a 0.9% increase in the total number of burglaries and just a 3% decline in the largest category, "larceny-theft" (about 2/3 of the total).

A 3% total reduction? Perhaps. But overall this data presents quite a mixed bag of good and bad news.

Declining crime would be better news if data weren't corrupt, incomplete

As has been discussed many times on this blog, data in Texas about both ongoing crime and criminal histories are incomplete and often corrupt, with wide variations from county to county and department to department regarding what gets reported and how. Sometimes what looks like a big reduction in crime may result from minor changes in reporting rates, while conversely, simply reporting all the data instead of just a portion of it might give a false appearance crime has increased.

So when I see headlines like the ones yesterday claiming a 3% drop in crime statewide, I take it with a grain of salt. Much more important is the overall trend - the Dallas News says there have been drops in seven of the last ten years, which makes me comfortable concluding crime is indeed declining, even if I don't 100% accept the measuring stick being used.

Even so, much of this data is suspect. Dallas is claiming large crime reductions, for example; 10% down in the fiscal year measured. But reminiscent of scenes out of The Wire, they've been jiggering their definitions to give the appearance of less crime, regardless of the overall level of victimization. By contrast, San Antonio saw property crimes spike at rates that seem inexplicable given trends everywhere else in the state. Who knows what's behind that? It could result from more crime, but could also be explained by more reporting of crime or improved data processing by police. Ditto for crime spikes in Austin's suburbs.

The best approach IMO is not to react much to this particular metric: Taking credit for statistical crime reduction sets law enforcement up to take blame when crime goes up, when really the rate of offenses fluctuate independently from their actions based on many other variables, particularly for homicides and other violent crimes.

Relatedly, I'm hopeful the Legislature may address equally flawed reporting by counties of dispositions in criminal cases, that is, if the House can hustle through a whole bunch of bills ahead of it to get to SB 1061 by Sen. Florence Shapiro, which just made out of House Calendars. That bill (discussed earlier on Grits here) would require counties with rates of reporting case dispositions of lower than 90% to create a data improvement plan to rectify problems with case reporting. This is especially critical in cases where charges are dropped; often counties will report when initial charges are filed but don't follow up when the case is dismissed, leaving a record that invites misreading in the state criminal history database. Good job by Sen. Shapiro to proactively address it.

If she's still with us at the capitol then (she's announced she'll make a run for the US Senate if Kay Bailey Hutchison resigns), I wish Sen. Shapiro would pursue a similar program for improving Uniform Crime Reporting data from Texas law enforcement agencies. Without a better effort to standardize definitions and strong incentives for agencies to comprehensively report crime data, these numbers will continue to be quirky, incomplete and more or less incomparable city-to-city or year-to-year.

See the full report.

Only a hit dog hollers: Brady violation at root of latest Dallas exoneration

I've read this story though several times now, and I think former prosecutor Patricia Hogue protests just a bit too much in her shrill accusation that Dallas DA Craig Watkins and his Conviction Integrity Unit misled the Court of Criminal Appeals and let a rapist free. "If the DA's office wants to do that and let rapists out of jail, that's OK. I'm not part of it anymore," Hogue said. "It's still absolutely false that I withheld evidence."

At issue: Hogue accepted a plea from Antrone Johnson, then a juvenile, on sexual assault charges after the victim told her the day before trial that she hadn't really been raped. Reported Jennifer Emily at the News:

Withholding such evidence from the defense is called a "Brady violation." The term refers to a 1963 U.S. Supreme County case – Brady vs. Maryland – in which the court found that prosecutors violate defendants' constitutional rights if they intentionally or accidentally withhold evidence favorable to the defense.

There is no criminal charge for a Brady violation in Texas.

The day before Johnson's trial, the girl told prosecutors that Johnson did not sexually assault her, according to court records. A school official also called her "a great liar," according to another notation in the file.

Hogue claims she would have disclosed the recantation verbally to the defense attorney, but defense counsel in the case doesn't agree and it's awfully hard to imagine any lawyer worth their fee who wouldn't get the case dismissed, or at least reduced, once they knew the victim backed off her accusation.

From this distant perspective, it doesn't seem credible to believe Ms. Hogue told Johnson's attorney her main victim/witness changed her story at the eleventh hour. No one but her behaved like they had that information.

See prior Grits coverage.

Dallas News: Pass innocence bills

In an editorial titled, "Legislature, pass these bills," the Dallas News this morning encouraged the Texas Legislature to approve several innocence-related bills still awaiting final votes this week, three of which could be heard as early as today on the House floor:

Despite advances in lineup techniques in recent years, many Texas police agencies have failed even to adopt internal guidelines or practices. That leaves the court system vulnerable to more cruel but avoidable outcomes.

A bill to provide safeguards (SB 117) has cleared the Senate, and House members are duty bound to pass it as well. Authored by Sen. Rodney Ellis of Houston and sponsored by Rep. Pete Gallego of Alpine, it requires police to adopt written lineup policies based on best practices established by outside experts. The Dallas House delegation should be the fiercest advocates of this proposal.

A related bill (SB 116) by Ellis, national chairman of the New York-based Innocence Project, addresses the bewildering fact that 25 percent of exonerated men had given false confessions. His bill pushes police agencies to electronically record their suspect interviews as another safeguard on wrongful convictions. It, too, deserves House approval.

Lawmakers should be commended for one bill to safeguard against fatal error. Passed by both House and Senate, it establishes a new office to provide qualified counsel to death row prisoners for state habeas corpus appeals, which may involve constitutional rights and matters of prosecutorial conduct.

Considering Texas' experience with wrongful convictions and active death chamber, we hope both houses also pass a strong version of a pending capital punishment bill (SB 1976). It would ensure access to the courts when a death sentence should be reviewed anew in light of advances in science. Texas must do everything possible to avert fatal error in its courts.

Finally, lawmakers should put the final touches on another long-standing Ellis proposal, that of a so-called innocence commission to analyze the breakdowns exposed by DNA exonerations and recommend ways to address them. HB 498 has cleared the House and awaits Senate approval.

A minor clarification: SB 1976 actually applies to habeas writs for all types of crimes, including but not limited to capital offenses as the editorial states. (An agreement was reached with prosecutors on that legislation, so it will likely be approved with a floor amendment implementing the compromise.) That bill will be heard today on the House floor, while SB 117 and 116 are eligible to be heard but quite a ways down the calendar and could still be pushed back until Friday.

Bill requiring corroboration for jailhouse snitches heads to Governor

The Texas House this afternoon (on third reading) passed the same version of SB 1681 (by Hinojosa/Gallego) as did the Senate, so legislation requiring corroboration to secure a conviction based on jailhouse informant testimony will now head to Governor Perry's desk.

Though hardly a cure-all, corroboration of jailhouse snitches was a key recommendation of the California Commission on the Fair Administration of Justice. Florida recently passed much more comprehensive legislation to rein in abuses related to informants. See a resource page from the Justice Project on the problem of jailhouse snitches.

Harrell out as TYC Ombudsman; Senate to discuss TYC/TJPC Sunset

Emily Ramshaw at the Dallas News reports that my former boss Will Harrell will leave his post as TYC Ombudsman and become "director of special projects" under Cherie Townsend at the Youth Commission. Good luck to Will, and to TYC. If history is any guide, you'll both need it.

Note to self: An opening for Shanda Perkins? ;)

RELATED: An email notice from the Texas Criminal Justice Coalition reminds me that:

Juvenile Justice Sunset Bill to be Heard in the Senate Today

On Wednesday, May 20, 2009, at 1:30 pm or upon adjournment in Rm. E1.004 (Extension Auditorium), the Senate Committee on Government Organization will hold its hearing on the Sunset bill (HB 3689) for the Texas Youth Commission (TYC), Texas Juvenile Probation Commission (TJPC), and Office of the Independent Ombudsman (OIO).

This hearing is where the rubber meets the road regarding any outstanding differences between the House and Senate versions of reforming juvenile justice, and the first discussion of the agency's future following the finalization of the next biennium's budget numbers. One expects they'll also get a chance to interview Will Harrell on his way out the door. Live video for that hearing will be available here once the meeting begins.

MORE (5/21): Isela Gutierrez reports (via email):

Yesterday's Sunset hearing was anti-climactic. No bill was voted out, although Senate Gov't Org did lay out and approve a substitute of CSHB 3689, with some possible amendments to come. There was coverage of the hearing by the Statesman blog and KUT (links below):

• KUT Morning NewsPod
• Austin Statesman blog

Guard pay, 2 TYC units snubbed in budget

The Statesman's Mike Ward has a couple of budget updates that will interest Grits readers:

• Prison guards get 3.5% raise
• Two TYC lockups on closure list, again

Both these are half-a-loaf solutions. Prison officials last year said they needed a 20% pay hike to solve their understaffing crisis, so one supposes this amount won't do much to fix that problem in the near term. This the Legislature telling the prison system it doesn't care if they have too many prisoners and not enough guards. "Tough it," is the implied retort.

Even so, emphasizing how costly the bloated prison system has become, even this much more modest raise will cost taxpayers an additional $120+ million; actually fixing the problem would have cost around $ 1 billion over the biennium. However failing to address understaffing doesn't make the problem go away; in fact, quite the contrary.

On the juvie side, the proposed conference committee budget would keep open TYC's Victory Field and Pyote facilities for one more year before closing them, a move which satisfied neither those who wanted the facilities closed before now nor those who would keep them open indefinitely. The idea of fixing the facilities up to keep them going was shot down. “We should not use kids as economic stimulus … which is what we’re doing here,” said Sen. John Whitmire. “I don’t know why you’d fix up something that there’s not going to be any demand for.”

Tweaking the machinery of death

There's a bill up on today's Texas House calendar which I've not tracked closely - SB 1091 creating a capital writs committee for indigent defendants (by Senators Ellis and Duncan) - that deserves Grits readers attention. See the House Research Organization report for background on the bill.

The inadequacy of indigent counsel on capital cases is one of those shortcomings that IMO contributed mightily to bringing the wrath of the US Supreme Court down on Texas' capital punishment system, so to the extent this new office would contribute to boosting the credibility of representation for capital defendants, even proponents of the death penalty have an incentive to support this bill if they want Texas' executions to continue to pass constitutional muster.

The House will consider another capital-punishment focused senate bill today, SB 839 by Hinojosa, which would eliminate life without parole for juveniles convicted of capital crimes, substituting a minimum, real-time sentence of 40-years. This bill has been surprisingly uncontroversial after Williamson County DA John Bradley and other hardliners came out in support of the concept. And at this point in the legislative session, lack of controversy is a good thing for those who want the bill to pass.

UPDATE: Both bills passed to third reading.

UK to police: Cameras in public spaces don't reduce crime

After learning recently that Dallas crime declined less in areas covered by surveillance cameras than in the city overall, I'm unsurprised to see more longitudinal research out of the UK - widely considered the world's most surveiled society - showing that surveillance cameras in public spaces don't reduce crime. Reports the UK Guardian ("CCTV schemes in city and towne centres have little effect on crime, says report," May 18):

The use of closed-circuit television in city and town centres and public housing estates does not have a significant effect on crime, according to Home Office-funded research to be distributed to all police forces in England and Wales this summer.

The review of 44 research studies on CCTV schemes by the Campbell Collaboration found that they do have a modest impact on crime overall but are at their most effective in cutting vehicle crime in car parks, especially when used alongside improved lighting and the introduction of security guards.

Given the growing body of research on the topic, particularly out of Britain, even many CCTV proponents and vendors now admit that the data fails to support claims that surveillance cameras reduce crime.

Where they are useful is to protect specific assets - e.g., in car parks where a security guard is monitoring cameras in real time. But because of the related expense, both for cameras and more importantly, staffing, cities need to develop evidence-based methods for deciding when to deploy surveillance cameras based on where (and how) they actually work. Just paying somebody to monitor cameras downtown risks misallocating scarce policing resources and wasting taxpayers' money without delivering on the promised safety benefit.

There's no reason for Dallas or anybody else to reinvent the wheel by constructing vast camera systems that don't pass a basic cost-benefit test.

Prosecutors justify opposition to DNA testing

Several readers forwarded me a copy of The New York Times' piece yesterday about prosecutors blocking access to exculpatory DNA testing.

It's a good read and covers the terrain well. One point I'd add from Texas' experience (particularly in Dallas), is that there's a potential unintended consequence for the state avoiding DNA testing: If the defendant turns out to be actually innocent, the clock may be ticking on the statute of limitations for prosecuting the real offender. Texas has seen cases where the statute of limitations ran out on the actual perpetrator WHILE prosecutors were fighting to prevent DNA testing that turned out to prove a false conviction.

Today, Texas courts are much more likely just to order the tests, but some prosecutors still fight DNA testing. Indeed, one of the examples in the Times story was from Austin:

In one such case near Austin, Tex., a defendant who was convicted in the bludgeoning death of his wife requested a DNA test on a bloody bandanna found 100 feet from the house. On its own, a test of the bandanna would not prove the guilt or innocence of the defendant the same way testing semen in a rape case might. But if it matched DNA found at the scene of a similar crime in the same county, or DNA in a database of convicted felons, it would be significant evidence that someone else might be responsible — the kind of evidence that might plant a reasonable doubt in a juror’s mind or lead to a confession by a perpetrator.

Although such matches have been found in many cases, most state DNA statutes focus only on whether a test alone could prove innocence. The purpose of Tennessee’s DNA statute, a court there said, was “to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant.”

Law enforcement officials often say, “ ‘We’re not going to consider the possibility that a third party did it,’ ” Mr. [Barry] Scheck said, adding, “which is completely crazy because you use the databank every day to make new criminal cases.”

For my money, that's an argument for why the defense bar deserves equal access to the national CODIS database along with prosecutors. Maybe the defendant is on a fishing expedition, but the reason folks go on fishing expeditions is that sometimes they come back with a fish. Many of these actual innocence cases amount to a needle found in haystack. Plus, law enforcement goes on fishing expeditions every day. Some guilty defendants undoubtedly will also request testing, but too many innocent ones have been identified through DNA to justify opposing any motion with a legitimate chance of producing probative information.

In general, I think both the prosecution and defense should have access to sufficient forensic testing to prove up their side, including DNA testing when it might inculpate someone else. DAs would be wise to heed the counsel of an attorney for one of the men described in the story seeking a DNA test: “The one thing I’ve learned in doing this for seven years is there’s no reason to guess or speculate. You can just do the test.”

RELATED: I should add that this stereotype about DAs isn't universally true. The Fort Worth Star Telegram profiled Dallas DA Craig Watkins over the weekend, praising him for his willingness to break with tradition and allow DNA tests in cases, some proving actual innocence, where his predecessor opposed it.

Can't take a hint: Shanda Perkins back for Round Two

I'd seen this article in her hometown paper declaring Shanda Perkins, who the Texas Senate recently rejected by a 27-4 margin for a $95K per year slot on the Board of Pardons and Parole, thought there was still a chance for her nomination to get through this session, but it seemed like piling on to make too much of it. Yesterday, though, the Austin Statesman's Mike Ward reported that Ms. Perkins was meeting with senators in the capitol seeking to switch enough votes (she's 17 short) to resurrect her nomination in the 81st Legislature's waning days.

Asked about the chances of reviving her candidacy, Nominations Chair Mike Jackson told Ward, “What was the vote, 24-7? [Ed note: 27-4, actually.] She’s got a lot of work to do, I’d say.” Indeed she does, and not a lot of time left to do it in.

Photo via the Fort Worth Star-Telegram.

Regard for Keller plummets among Houston lawyers

According to the Houston Chronicle's Legal Trade blog, respect among Harris County lawyers for Court of Criminal Appeals Judge Sharon Keller has plummeted in recent years:

The Houston Bar Association's judicial evaluation poll released [May 8] (see it here) shows some big losses in confidence in jurists who have been in the news - especially Sharon Keller on the state's highest criminal appellate court and David Medina on the state supreme court.

Keller, the presiding judge of the Texas Court of Criminal Appeals, is facing formal proceedings from the state Judicial Conduct Commission accusing her of violating the rights Michael Wayne Richard who was executed in 2007. She ordered the court clerk's office closed promptly at 5 p.m. the day of his execution though his attorneys had a late filing.

In 2007 Keller had 39.7 percent of 78 voters rate her poor and 52.1 percent rate her outstanding. In the 2009 poll, 81.3 percent of 201 voters rated her poor and only 14.1 percent rated her outstanding.

Texas Supreme Court Justice David Medina's wife was indicted on a first-degree arson charge in a fire that destroyed their home and a neighbor's house in Spring. This was after a controversy surrounding the Harris County grand jury that looked into the case and the prosecutor withdrawing the grand jury's charge against the judge for tampering with a document.

In 2007 Medina had 28.8 percent of 292 voters rate him poor and 41.2 percent rate him outstanding. In the 2009 poll, 50.5 percent of 315 voters rated him poor and only 21.9 percent rated him outstanding.

It's pretty telling when an alleged arsonist on the state Supreme Court is viewed more favorably by Houston lawyers than is the Presiding Judge of the Texas Court of Criminal Appeals. At this point, she should just resign. It further discredits and undermines the court every day Sharon Keller continues to sit on it.

Bill creating repository for traffic-stop data needs to move if it's going to pass

As the 81st Texas Legislature winds down, everyone around the capitol is busy surveying the terrain for the few, remaining bills among the 7,000+ filed that survived the carnage, and in doing so this morning I notice a good bill many years in the making: SB 1120 by West, which would reduce and standardize the amount of data gathered for so-called racial profiling reports at traffic stops and create a statewide central repository to gather and compile them. This senate bill is up in the House Criminal Jurisprudence Committee hearing on Wednesday, and despite the late hour, I hope it can move quickly through the lower chamber to a successful denouement.

This important cleanup legislation fixes problems with traffic-stop data as the law currently requires it to be gathered and creates a more stringent requirement that it be reported annually. Dozens of agencies have simply ignored both the law and open records requests from the Texas Criminal Justice Coalition - a nonprofit that heretofore has served as an informal repository of racial profiling reports using the Public Information Act - for access to their local data.

The debate over racial profiling at traffic stops has changed a lot since I've been involved with the issue, entirely because of the 2001 law requiring data gathering at the departmental level. Before that, police administrators and union reps would boldly claim to anyone who would listen that there was no evidence of racial disparities at traffic stops and critics didn't know what they were talking about.

Then the numbers came out and the average disparity between races was well beyond statistically significant. Over time, as this new reality sunk in, the debate among Texas' law enforcement community (to judge by their interactions with activists pushing for reform) transformed from denial ("racial profiling never happens") to what IMO has been a more constructive if often contentious debate about the reasons for disparity. That's a subtle but important shift that occurred pretty rapidly because of the data gathering required in that 2001 statute. Quite a few departments also altered their policies on consent searches as a result of data reported under the statute, including Austin PD which moved to require written consent to search vehicles at traffic stops.

Today's debate, as a result, poses new questions that drafters of the 2001 law couldn't have foreseen, but which over time became apparent as experts from all sides parsed the resulting data. SB 1120 reduces and simplifies the amount of data officers must gather but makes the data points regarding searches more specific, parsing them in a way that will allow more probative, useful analysis for managers, supervisors, and those outside the agency who want to understand the sources of disparity, racial and otherwise, that crop up variously in routine traffic stop searches.

For example, by requiring that police record whether contraband is discovered as a result of the search, it's possible to assess a "hit rate" that measures the relative effectiveness of performing consent searches. Right now, the data required in state law doesn't include that critical metric, so everyone is left looking at the resulting data on "consent searches" without knowing how often the tactic worked. I don't know what the contraband data will say (though from departments that gathered that data in the past, I could hazard a guess). Without question, no matter what the overall trend, results among departments are still likely to vary widely. But I do know that the debate over racial profiling and 4th Amendment rights at traffic stops has been taken as far as it can go based on the 2001 law without the additions required in this bill.

The other key issue SB 1120 would resolve is compliance: A nonprofit pursuing open records requests at hundreds of departments statewide (just under 1,000 out of 2,500+ agencies registered with TCLEOSE), only has so much leverage to get agencies to produce the required reports. Plus, because they're viewed as reform advocates, some departments never accepted TCJC's de facto, semi-official role as keepers of Texas' racial profiling data, which may partially explain their lack of compliance. This bill hands the collection task over to a neutral arbiter at a state agency and gives them enforcement authority to insist by rule that the data be produced as the law requires.

The final House calendar with Senate bills will be published next Sunday, so there's not a lot of time. But this bill cleared a big hurdle by getting out of the Senate in one piece and the House would do well to seize the opportunity and pass SB 1120 while they have the chance.

Habeas writs by the numbers

Discussing post-conviction habeas corpus writs, a topic about which I've been learning much more this session, Doc Berman says he'd like to see more state-level numbercrunching:

US District Judge Lynn Adelman's new article titled "The Great Writ Diminished" aspires to "stimulate a discussion about the current state of habeas corpus. Wonderfully, the article has already started such a discussion in these blog comments, and I want to keep the momentum going in this post.

Specifically, I would like to see a lot more number crunching concerning habeas appeals of state convictions in federal courts. Judge Adelman builds off the ground-breaking 2007 Vanderbilt study which, as discussed here, found that of 2384 non-capital filings examined, petitioners received relief a rate of 1 in every 341 cases filed, whereas of the 267 capital cases examined, about 1 in 8 petitioners received relief. These national numbers may obscure lots of significant state variations and also significant issue-specific variations that could and should tell us a lot more about how the great writ is really working.

Happy to oblige.

In Texas, evaluating (and mostly denying) habeas writs makes up a large amount of the caseload for judges on the Court of Criminal Appeals and their staff. According to the annual activity report for the CCA (pdf, page 2, right column), in fiscal year 2008 Texas high criminal court considered 5,290 individual habeas writs, but granted relief in only 8 of them. That's a rate of about one out of every 661 cases, or about half as often as federal judges evaluated in the Vanderbilt study. (Another 350 were remanded for evidentiary hearings by a trial judge and not finally decided.)

Federal District Judge Lynn Adelman, by contrast, approved 12 writs out of 300, or approximately 4%, leading the judge to argue that "if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be." Maybe so, but the judge's colleagues are decidedly friendlier to claims by writ writing prisoners than the Texas Court of Criminal Appeals, by a longshot.

'Born Behind Bars'

The Lubbock Avalanche-Journal today published a nice piece by Logan Carver ("Born Behind Bars") exploring what happens to pregnant women in the Lubbock jail and in Texas state prisons. About 250 women per year give birth in a Texas prison hospital, the A-J reports, and dozens more pregnant women (nobody knows how many) are housed in Texas county jails at any given time. Well worth a read.

Relatedly, legislation discussed here regarding pregnant jail inmates - one bill to ban shackling during labor and delivery and another to require an accurate count of pregnant inmates - has passed the Texas House.

• HB 3653: Bans the shackling of incarcerated women in labor and delivery (with some necessary exceptions for safety).
• HB 3654: requires county jails to plan their medical care for pregnant women and also requires them to count how many pregnant women they have incarcerated.

No mention of the bills or the issue of shackling during delivery in the A-J story, but I did notice a recent letter to the editor on the topic out of Waxahachie, of all places. Both bills are awaiting action by the Senate Criminal Justice Committee where, according to the Texas Jail Project, freshman Sen. Wendy Davis will hopefully shepherd them through the upper chamber.

'Is there credibility in citizen journalism?'

At Digital Journal last week, the question was raised, "Is there credibility in citizen journalism?" But from my perspective, that turns the question on its head. Instead I'd ask, "Would citizen journalism exist if the mainstream media had more credibility?"

Don't get me wrong, I think we need the mainstream media, but as one of these so-called citizen journalists (that's just a "blogger" for those of us in the flyover states) I can tell you part of my motivation for doing this is precisely a reaction to my own criticisms of how the MSM cover stories. They should at least acknowledge the beef goes both ways.

Digital Journal quotes a grey-bearded ex-journalist from the Tornonto Globe and Mail, Jack Kapica, who offers this critique of blogging:

"Much of the writing I’ve read, on most citizen journalism sites, shows little understanding of the process of gathering the news and writing it in a conventional form. Conventionality of presentation is important because it can give readers a recognizable framework to assess and understand what’s being written."

Style issues aside, Kapica says citizen journalists need to focus on doing more original reporting rather than working as a rewrite desk in a newsroom. "One of the critical things many citizen journalism writers do not understand is the necessity of interviewing people and quoting them. The value of original quotes cannot be overstated. Too frequently I see citizen journalists quoting the mainstream media stories and I can’t see how this differs from mainstream media."

These comments interest me, particularly the bit about conventional presentation, because of the other main critique of bloggers Kapica offers - "bias." This confluence of opinions tells me Kapica (and, believe me, many other grey-bearded journalists) doesn't understand the biases inherent in traditional news reporting to which the blogosphere is largely a reaction.

When Kapca talks about "conventionality of presentation," he's referring to what in journalism school is called a reverse-pyramid format for news-writing: Where the "most important" news is presented in the "lede" or opening stanza to the story with less important items by rank appearing further down in the copy. The idea was, in the old days, that editors at daily newspapers making snap decisions could reliably just "cut from the bottom" and be confident that they didn't remove the crux of the story.

But that "conventionality" reflects an historical belief by journalists in a faux objectivity that most bloggers believe does not exist. When you think about it, a lot of value judgments must be made to decide what's "important" about a story and different people may think different facts are key.

Indeed, most quality blogging in my experience comes from folks with expertise in a field who see that MSM coverage of their area fails to adequately cover or even identify what's important. In Grits' case, I launched this site in part because I was sick and tired of the MSM's crime coverage dichotomy: Tuff vs. Soft seemed like the the only terms of debate, usually "balanced" with quotes from "both sides." I thought such discussions deserved more nuance.

Which is another reason I think Kapica overstated the value of getting independent quotes. "Getting quotes" is a means of maintaining the appearance of objectivity by attributing views expressed to others. Often the journalist already knows what they want the source to say but comes to them to fill in already-made assumptions about the story. Quoting sources can be useful when journalists earnestly explore different perspectives, but that's a lot rarer than the formulaic use of quotes in most MSM stories, particularly on crime and punishment.

That explains why often bloggers will simply quote and comment on the MSM: Their role isn't to supplant it but to fill in its gaps missed by the he-said/she-said formula, to assert meaning to the news beyond the reporter's faux objectivity and identify biases and agendas that underlie MSM coverage but are too often un-acknowledged by it.

That's also why I'm less concerned than Kapica about journalists or bloggers acknowledging their biases, which he thinks reduces journalism's credibility.

"I see [citizen journalists] freely mixing opinion with factual reporting in obvious ignorance of how this is a conflict of ambition," Kapica says. "In one story I read a while ago, a fairly well-structured news story suddenly included the following sentence opener: 'Now come on, folks...' If the mainstream media tried to pull a stunt like that, it would be flayed for bias. For some lucky reason citizen journalism is being held to a different standard."

I see this completely differently, believing the oberserver's bias is inherently part of any high-quality written piece. If the reporter masks their opinions, their views are still latent in decisions about what is important, who to quote or which quote to use and which ones to discard. I'd rather the writer tell me their opinion, even if I disagree. That way, I can identify the threads of fact they present that I believe independently are probative and which ones merely support the writer's personal views. Indeed without that knowledge, I don't always know whether to trust the conclusions in a piece of reporting sans independent verification.

I think Kapica's right that the blogosphere could use more original reporting, but it's easy to overstate how much original reporting many MSM reporters historically have done. Many stories begin with a press release or a single insider source with an agenda. That's particularly true in politics and on the crime beat, where the local police department PR office is the source for the vast majority of what's printed about local crime. While not universally the case, it's true often enough that workaday journalists can't be too high and mighty about the amount of shoe-leather spent getting their stories.

I do agree with Kapica that the lack of editors in the blogosphere is a tremendous loss and can sometimes lead to embarrassing slip ups. But these days even MSM journalists produce unedited prose in daily newspaper blogs so that trend goes beyond the amateur/professional gap. For that matter, publishers frequently don't finely edit books anymore; either an agent does it or the job is left to an amateur, family member etc.. In such an unfiltered context, though, isn't knowing the reporter's biases even more key to understanding what you're reading?

I also agree that would-be bloggers would benefit from training, but perhaps we should think about that more broadly than just that wannabe bloggers need to take a few classes before they can play in the big-leagues. Such classes may be needed by some in the current class of bloggers, but going forward maybe we need to rethink how we teach writing in public schools if, in the future, the public will rely more on average citizens' journalistic contributions.

Obviously I believe there can be credibility in citizen journalism or Grits wouldn't have more than 4,000 posts published in the last five years. IMO, perhaps its time to discuss instead how to boost journalism's credibility generally, regardless of medium or employment status.