Charles Sebesta's career as a police trainer

Working off a lead she garnered from the comments of a Grits post, she informs me via email, Houston Chronicle columnist Lisa Falkenberg offers up a terrific piece of reporting on Charles Sebesta, the District Attorney accused of prosecutorial misconduct by the US 5th Circuit and a special prosecutor, Kelly Siegler, in Anthony Graves' wrongful capital murder conviction. Falkenberg hones in on Sebesta's post-prosecutorial career as a trainer for sheriffs' departments, discovering that he misrepresented his credentials on his website:

the disgraced former Burleson County district attorney has been traveling the state, and the nation, he says, advising law enforcement organizations and teaching courses to peace officers.

The negative publicity over a case that even Gov. Rick Perry has called a "great miscarriage of justice" hasn't cost Sebesta a single client, he claims: "I've got as much as I can do."

Kelly Siegler, the special prosecutor in the case who has accused Sebesta of, among other things, manipulating witnesses, fabricating evidence and misrepresenting facts to the jury in the Graves case, called his current teaching role "disgusting."

"The last person you want telling your guys what to do at 3 o'clock in the morning is Charles Sebesta," Siegler said.

Not only is Sebesta teaching, but he's been passing himself off as a state-certified instructor and the staff "training coordinator" for the Sheriff's Association of Texas. The title appears on Sebesta's online bio, and, before I began asking questions, on the association's website. Sebesta told me this week he's the coordinator who "signs the papers."

When I called the sheriff's association, Executive Director Steve Westbrook said Sebesta was not the coordinator and wasn't even on staff. Westbrook said Sebesta was just a contractor who, for a decade or so, has taught two, maybe three courses a month across the state.

"He may call himself the training coordinator, but he's not," Westbrook said. "I don't know if Charles gave himself that title. Maybe it sounded better."

Ouch! There's a "gotcha" moment, beefing up his resume with a phony job title! Even worse (or better, for those indulging in schadenfreude), it turns out he's not even certified as an instructor by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). He insists it's a recordkeeping error, but neither TCLEOSE nor him can produce any documentation. Wrote Falkenberg:

When I called the commission, the director of education and credentialing, Kim Vickers, maintained it wasn't his job to raise concerns. It's the responsibility of each organization's training coordinator to hire qualified instructors, he said. 

Vickers also disputed that Sebesta is the coordinator, saying he knows the real one and it ain't Sebesta. He added that, like most instructors, a training coordinator is required to be certified.

Sebesta maintains that he is certified, and at least one county that hired him believed he was. It's not hard to get a certificate: you just have to pay $25 and pass a 40-hour course.

But state records show Sebesta has no such certification.

Double Ouch! A professional fraud! And this is the guy who's attacking Anthony Graves', Kelly Siegler, and Pam Colloff's integrity! Falkenberg concludes with such a strong statement I cannot improve upon it:

It's not surprising that Sebesta's story doesn't mesh with the others. He seems to have always had trouble with the facts. When the evidence against Graves wasn't there, he apparently made it up.

When he was told over and over again by different parties that Graves was innocent, he continued not only to prosecute but to seek death.

Sebesta has no business instructing anybody on the law. Even a class on civil process would require him to give guidance on good judgment and ethical standards, two things Sebesta doesn't seem to know the meaning of.

There may be only one course Charles Sebesta is truly qualified to teach: How to steal 18 years of an innocent man's life and get away with it.

If a fiction writer created a shameless sleazebag District Attorney like Sebesta as a character in a novel, it would be viewed by critics as over-the-top caricature. He and Mike Nifong ought to start a club.

See related coverage:

• Who wants to help Anthony Graves get compensation?
• Can Governor Rick Perry Pardon Anthony Graves?
• Bittersweet exoneration stories
• Texas Monthly vs. Charles Sebesta
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• The Anatomy of a Frame-Up: More on Anthony Graves
• Governor: Graves case shows system works (just not Texas')
• Flurry of media surrounding Anthony Graves exoneration
• Anthony Graves: Innocent and free 16 years after unfounded death sentence
• Progress and its Discontents - or, What I learned from an article in Texas Monthly (guest post by Jeff Blackburn)

Whitmire: 'Ticketing Students at School Teaches the Wrong Lesson'

State Senator John Whitmire's staff forwarded me the following op ed by the Senate Criminal Justice Coalition Chairman that deserves Grits readers' attention.

It sounds ridiculous on its face: Young children ticketed at school for disrupting class, marking on a wall with pencil, using a cuss word, scuffling on school grounds, and misbehaving on a school bus.

These aren’t school-issued “behavior tickets” that send disruptive students to the principal’s office. These are Class C misdemeanor tickets issued by real police officers assigned to schools. And, they are sending thousands of Texas students -- some under the age of 10 -- to adult criminal court each school year to face fines of up to $500, community service, and court costs.

The vast majority of these tickets are written for Disruption of Class or Transportation, Disorderly Conduct, curfew violations (leaving campus without permission), truancy, and fighting where no weapon or serious injury is involved. Over a five-year period, Class C tickets were issued to 1,200 elementary school students in Dallas ISD. Houston ISD’s police department wrote 5,763 Class C misdemeanor tickets to students in 2008-09 alone.

Shocking? Commentators on CNN and national Fox News think so. Consider the case of a 12-year-old special needs student in Austin who was ticketed for Disruption of Class for applying perfume after peers told her “she stank.”  Does it make sense to send this child and others like her to court? Perhaps it is time to send ticketing to “time out” and question our own behavior as disciplinarians.

A major New Jersey newspaper made it very clear what it thought about student ticketing in Texas: “This is not something we should replicate….Schools should be prepping kids for college, not prison.” 

Despite evidence that Class C misdemeanor ticketing does little to change student behavior, the practice is widespread in our public schools. According to a recent report released by the public interest law center Texas Appleseed, more than 275,000 non-traffic tickets are issued annually to juveniles in Texas. -- many for low-level misbehavior commonly ticketed at school.

Appleseed’s research shows that minority and special education students, who are at greatest risk for school dropout, are being ticketed at higher rates for low-level, non-violent offenses. In a recent legislative address, Texas Supreme Court Chief Justice Wallace Jefferson made an important point:

“More than 80 percent of adult prison inmates are school dropouts. Charging kids with criminal offenses for low-level behavioral issues exacerbates the problem.”  This is a warning worth heeding.

Students should be held accountable for their behavior, but criminalizing misbehavior and issuing Class C misdemeanor tickets at school is not the answer. Why? It is unevenly applied, a waste of limited resources to track and prosecute these cases, and teaches students the wrong lesson.

If ticketing is not outlawed altogether in Texas schools, at a very minimum the Texas Penal Code should be amended this Session to eliminate Disruption of Class and Disruption of Transportation as Class C misdemeanors.

What should replace ticketing? Schools, law enforcement and the courts need to be part of finding the solution, whether it be encouraging campuses to use positive behavioral support programs (shown to reduce disciplinary problems), training school police officers in de-escalation techniques and child behavior, or moving toward peer mediation and school-based alternatives.

Whatever the approach, the goal should be restoring responsibility for student discipline to the school -- in all but the most severe cases. How we discipline should teach students when, where and how to take responsibility. It can be the most important lesson schools teach.

Senator John Whitmire, a Democrat from Houston, represents Texas Senate District 15 and serves as Chairman of the Senate Criminal Justice Committee.

Briefing on TYC-TJPC merger Tuesday

Those looking forward to learning more about the proposed merger between the Texas Youth Commission and the Juvenile Probation Commission, here's the event for you, at least before we get to the big hearing on Wednesday. Via email press release:

Special media briefing tomorrow on TYC/Juvenile Justice Reform with Chairman Madden and Advocates
 
Who:
Rep. Jerry Madden (R-Plano), Chairman, House Corrections Committee; Deborah Fowler, Texas Appleseed; Marc Levin, Texas Public Policy Foundation
 
What & Why:
Media briefing to discuss pending juvenile justice reform, including Madden’s bill to consolidate the Texas Youth Commission and the Texas Juvenile Probation Commission (HB 1915). This measure appears to be a continuation of the Legislature’s TYC reform efforts of relying less on remote, ineffective facilities, and instead using more local, community-based corrections and treatment alternatives that have been shown to improve public safety, improve youth outcomes, and reduce costs.
 
This briefing is to prep reporters in advance of Wednesday’s House Corrections Committee which will hear Madden’s HB 1915 upon adjournment. Madden has indicated that this bill will change throughout the committee process as a result of feedback from others, and this briefing will address those and other issues.
 
Please note that this is an informal briefing, and participants will be available for extended questions and discussions with the media. Lunch will be provided.
 
Where:
Texas state capitol, 3W.9 (3^rd Floor Conference Room above the Speaker’s Office)

When:
March 8, 2011, 12:00 Noon or upon House adjournment, whichever is later.

I suspect the event will be available online via livestream. I'll post a link in an update to this post when it's available.

Nominations Chair: Bradley appointment as forensic chair looks doomed as Rs join opposition

Peggy Fikac at the Houston Chronicle quotes Texas Senate Nominations Chairman Bob Deuell on the waning prospects for Williamson County DA John Bradley's confirmation by the Senate as Forensic Science Commission Chairman.

"The Democrats are not going to vote for him, and there are two Republicans that are not," said Senate Nominations Committee Chairman Bob Deuell, R-Greenville. It takes a two-thirds vote of the Senate to confirm the governor's appointees. There are 19 Senate Republicans and 11 Democrats.

"He probably thought he could talk a couple of Democrats into voting for him. I don't think he can talk four" into it, Deuell said.

Bada Bing, Bada Boom. That should just about do it. Cue the exit music, maestro. Coming back from that deficit would require Lazarus-like qualities. Especially since, from what I've heard via the rumor mill, if push came to shove, more than two Republicans might end up voting against the FSC chairman. There are several R swing votes who'd probably appreciate not being forced to make a public decision. Now, it seems unlikely they'll be required to do so.

What I think did in the nomination was a) Bradley's bellicose performance at the Nominations Committee where he openly insulted Sen. Rodney Ellis, and b) his arrogance, duplicity and manipulation of fellow Republican appointees to the Forensic Science Commission. In his latest column, Rick Casey at the Houston Chronicle recounts an episode exemplifying the latter behavior:

In July, he presented the commission with an unsigned memorandum finding that it didn't have jurisdiction over the Willingham case and claimed it was "drafted, reviewed and edited through the combined efforts of the two members of the FSC who are lawyers, counsel for the Attorney General's Office."

When that was exposed as untrue, Bradley, who couldn't quite admit that he wrote the memo, joined in an 8-0 vote rejecting its conclusions.

Casey's right, that was a truly surreal moment. He also describes another example predating Bradley's ascendancy to the FSC chairmanship which was the subject of questioning from Sen. Ellis to me during testimony at last week's Senate Criminal Justice Committee: Destroying DNA evidence as part of plea agreements to preclude future testing.

Bradley's attitude toward the use of science was demonstrated back in 2002 when, on an Internet bulletin board for Texas prosecutors, he responded to a prosecutor who wanted a suspect to waive any further DNA testing as a condition of a plea bargain.

"A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentencing. Then, there is nothing left to retest."

The reason it should be destroyed is that if the defendant later shows evidence he is innocent, he might get his earlier agreement set aside.

"Innocence, though, has proven to trump most anything," Bradley wrote, as if this is a problem.

I asked him what interest the state has in destroying evidence, especially when scores of Texas convicts have been found innocent based on DNA testing after serving years in prison. 

He said we need finality and painted a picture of thousands of inmates filing endless appeals.

When you go look at the comment string on that topic now, the portions quoted by Casey have been excised from the bulletin board of the Texas District and County Attorneys Association (and for the record, the comment string in question happened in 2007, not 2002, which is the date JB signed onto the User Forum, not the date of the posts in question.). However, when at last Tuesday's hearing, Sen. Ellis asked me what I knew about the practice of securing destruction orders for DNA evidence, I testified that most of what I knew on the subject came from this TDCAA User Forum string and discussions that grew out of it in these two Grits posts. I told Ellis I'd kept a copy of the string in case it had been deleted before we were finished talking, and have uploaded it here (Bradley is commenter "JB") for posterity. :)

So, although his original posts have been deleted at TDCAA, Mr. Bradley can't deny supporting destruction of DNA evidence in order to forestall future innocence claims. Nor can he deny his aggressive, bullying behavior on the commission, nor his belligerence to lawmakers - too many witnesses and cameras were there for that. At this point, the case against him is clear and his own defense isn't credible. As a prosecutor, he would no doubt advise someone in his position to take a plea bargain and resign themselves to their fate. In this forum, he should instead just walk away and save the taxpayer the time and resources required for further deliberation. The Texas Senate has bigger fish to fry this session.

My hope is that either a) the Governor names one of the remaining commissioners as chair and selects a new prosecutor rep who's less opposed to the core mission of the agency, or b) the Legislature amends the FSC authorizing legislation to allow the commission members to pick their own chair. Mr. Bradley played a key role in diverting the commission's focus from scientific issues and shutting down its activities, attempting (for the most part successfully) to make the public debate about capital punishment instead of flawed arson science. This unexpected development presents an opportunity for the FSC to renew its focus and gain traction on investigative and public education projects that were all shut down from the moment John Bradley became their leader.

Like The Terminator, he'll be back. But at least there may be a happy ending (for everybody but JB) to this particular episode.

Report: Whites more likely to be freed on bond than minorities in Harris County

An article in the Houston Chronicle today hits on familiar themes to Grits readers, discussing a new report from Houston Ministers Against Crime, a group of politically connected black ministers, and the Texas Criminal Justice Coalition analyzing pretrial detention patterns by race. The story opens:

More than 15,000 people were collared in Harris County for misdemeanors in the final months of 2010, but 70 percent of white inmates were released on bond before trial, compared to 50 percent or less of Hispanics and African-Americans, a new report critical of detention practices shows.

White criminal defendants also generally had to pay lower bonds for their freedom, according to a report released by the Houston Ministers Against Crime. The group of politically connected pastors claims aggressively locking up those who have been accused — but not yet convicted — for crimes like fighting and trespassing costs taxpayers big bucks and harms poor communities "struggling under the ongoing financial crisis."

Last week alone, more than 840 people accused of misdemeanors remained jailed at a cost of about $38,000, or $45 per person daily plus processing expenses, Harris County Sheriff's Office records show. Many are poor and unwilling or unable to pay fees of $200 or less to a bondsman.

Houston Ministers Against Crime released the new report to urge county judges and commissioners to correct a racial and socioeconomic imbalance they claim hurts poor people accused of crimes as well as others.

"Due to widespread economic woes, many of our citizens are unable to raise the money necessary to post bonds on even relatively minor cases," the report says. "Even while presumed innocent, they remain in custody as their jobs are lost and their financial troubles worsen. This hardship further undermines their families and communities."

I can't find a copy of the report online, but I've emailed TCJC to request one. Mainly, reporter Lise Olsen correctly infers, elected judges are to blame for the disparity and the large number of pretrial detainees generally, given that:

58 percent of the county's 9,700 current jail inmates remain "pretrial," the week's statistics show. Among them are disabled adults, teenagers, the mentally ill, substance abusers and first-time offenders who often get mixed in with hard-core felons.

Judges alone could decide to allow more misdemeanor and other nonviolent criminal defendants to remain free before trial if unable to post bond, but Harris County jurists rarely use so-called personal recognizance bonds, other records show.

Harris County District Judge Belinda Hill, the newly elected administrative district judge, said a judge-led group already is collecting information on pretrial detention and she'd like to expand it to include community members.

"This is an important area that judges have begun evaluating and will continue to do so," she said.

Great, judge, you "continue" to "evaluate" that while the jail is so packed the county is shipping prisoners off to Louisiana and getting a per-day bill in return. Given that consultants paid by the county said many years ago that rising rates of pretrial detention were the main cause of jail overcrowding, the idea that judges have only now "begun evaluating" the issue seems laughably, pathetically obtuse, not to mention way late. An editorial accompanying the story lamented that police and courts are:

sending indigent defendants, predominantly black or brown, to county jail for lengthy stays before they can contest charges in court. Many of them are charged with nonviolent misdemeanors that could have been handled with a citation and court summons rather than jail. These defendants often spend more time behind bars than the sentences for their offenses would mandate. Innocent inmates are pressured to plead guilty simply to get out of jail.

Although the U.S. Supreme Court requires that bail decisions should be based on the risk factor posed by a defendant to the public and the individual's financial resources, in Harris County in 2009, magistrates lowered bond amounts for financial reasons less than 10 percent of the time. Courts in Travis County, which has a population much smaller than Harris County's, granted more than 18,000 personal recognizance bonds, roughly three times the number approved here.

Want to solve the jail overcrowding problem without spending a fortune on new facilities, overtime, etc.? Police should be issuing citations for offenses where they're eligible, and judges should be issuing more personal bonds or reducing bail to manageable amounts. These are soluble problems, but not if the police or judges won't alter how they approach these petty offenses. Either they must choose to help, or someone (for police, the City, for judges, the Legislature) must require them to do so.

In particular, jailing people pretrial for longer than their sentences would warrant makes no sense. That's true whether it's for want of money for bail or mentally ill defendants awaiting competency restoration. But it's fairly common and one of the key causes of jail overcrowding statewide. 

Particularly in a large urban jail like Harris County's, the only real limit to police and judges jailing ever-more people appears to be not voter antipathy for mass incarceration but the willingness of voters to pay higher taxes to cover the bill. (That's the only reason Houston PD stopped arresting traffic violators.) After voters rejected their last jail bonds, and with their jail overflowing into the Bayou State, Harris County appears to have reached that point, at least for now. I suppose the cat-herding job falls to Jail Czarina Caprice Cosper, who is charged with somehow getting all these interconnected but disparate, often competing actors to work together toward the common goal of reducing the incarceration rate.

In the meantime, one thing the Legislature could do to help with the problem is pass Houston Rep. Harold Dutton's HB 548 (discussed here) reducing penalties for low-level pot possession to a fine-only offense. But mainly Houston police and the Harris County Sheriff need to begin using authority they've had for years to issue citations instead of arresting for certain petty Class B misdemeanors (Dallas does it, so does Austin, so can they). And most of all, judges must loosen up on bail for defendants who pose little risk but simply can't afford to pay. The purpose of bail is to incentive the offender's return to court, not to needlessly fill up the jail nor prop up an anachronistic bail-bond industry that's been outlawed in most of the civilized world.

See related Grits posts on:

Citations for Petty Misdemeanors

• Austin PD will finally implement citations for petty misdemeanors
• Smart policies can boost police coverage even in tight economy
• Long booking times a strong argument for police using new citation authority
• Nuts and bolts of citations for low-level misdemeanors explained by Travis Sheriff's Office
• On the source of volitional jail overcrowding in Bexar County: Why solve a problem when you can create one?
• Sheriffs more likely than PDs to welcome new arrest discretion
• Jefferson County works out kinks with new cite and summons authority
• How one Texas county will take advantage of new law to reduce jail overcrowding
• HB 2391 could save Bexar taxpayers $10,000 per day
• Cite and summons for low-level offenses could free up jail space
• Texas Lege approved new tools to reduce jail overcrowding, if police can change their thinking

Pretrial Bonds :

• Increased Harris County Jail costs, inmate numbers third highest in nation over last decade
• Reduce pretrial detention to stave off overcrowding
• Elected Officials Guide to Jail Population Management
• Judges have tools to reduce Harris jail overcrowding if they'll use them
• Shipping inmates to other counties won't lower Harris jail population, just scatter it
• Counties that rejected new jails must now get serious about diversion
• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers

Exonerees prevail in compensation suit vs. Comptroller

The State Supreme Court sided with exonerees in a lawsuit against the state Comptroller, who had disapproved portions of their compensation for false convictions because they were on probation or parole when falsely convicted of a different crime and revoked over the false allegations. Reports the Austin Statesman:

The Texas Supreme Court on Friday ordered the state to pay $2.7 million to three wrongly convicted Texans who spent, in total, 52 years in prison for crimes they did not commit.

Wrongly convicted Texans may collect $80,000 for every year in prison, but Comptroller Susan Combs' office ruled that the three men were ineligible for full compensation because they had been on parole for prior crimes when they were imprisoned.

But a unanimous Supreme Court said Combs' office was too restrictive in applying the law, enacted in 1965 and updated in 2009 to compensate exonerated convicts for the emotional, physical and economic toll of prison.

Being on parole did not disqualify the men from full compensation, the opinion by Justice David Medina said.

There's another extant case, that of Anthony Graves, where the Comptroller has denied compensation claims, forcing the exoneree into court to get the money coming to him. Texas' compensation statute was created in part to avoid expensive civil litigation when innocent people are falsely convicted, but litigation can only be avoided if the Comptroller pays out as it should in clear cases of actual innocence.

See related coverage from the Supreme Court of Texas Blog, describing how precedents from the Tulia cases set the stage for yesterday's ruling.

Bill to merge juvenile justice agencies up next week

Big hearing on Wednesday on the juvenile justice front: The House Corrections Committee will hear Chairman Jerry Madden's HB 1915, "Relating to abolishing the Texas Youth Commission and the Texas Juvenile Probation Commission and transferring the powers and duties of those agencies to the newly created Texas Juvenile Justice Department and to the functions of the independent ombudsman for the Texas Youth Commission."

I've been focused elsewhere and have yet to read the lengthy bill, much less analyze in detail exactly what it would do. I'm not sure who has outside of those directly involved in its drafting - I've seen few if any journalistic nor bureaucratic analyses of the legislation so far. So I suspect we'll learn a lot at this hearing about the details of the proposal as well as the interests and criticisms of various stakeholders.

In related news, I should also mention that TYC has created a process for public input on which units it should close. According to a recent message to employees from TYC executive director Cherie Townsend:

At the direction of the TYC Board, the agency will begin a process during the next two months (March and April) of determining which facilities will be closed.  This process will be much like that used by the Base Realignment and Closure Commission when they close down federal military installations.  We will schedule community hearings in each location where we have a facility.   At that time, we will hear from employees and community leaders about the unique features of each facility, what the agency would lose by a closure at that location, how closure would impact the community and whether a specific community has the resources to support an increase in the number of youth and employees at a specific facility.

These meetings will probably take place on Saturdays, and I will be there with additional staff and at least one board member to hear the presentations.  For those unable to attend, we will establish other avenues for you to communicate your thoughts and concerns.  I anticipate that the TYC Board will then consider staff recommendations on which facilities to close at their June 2011 meeting.  The closures would be scheduled to take place no later than September 1, 2011.

Ironically, if HB 1915 passes the TYC board may not exist by their June 1 meeting, so I'm now sure how all that will be reconciled. In any event, these next few months will be another turbulent, uncertain period for state juvenile justice agencies. Wednesday's hearing will finally pull back the curtain on important discussions that until now for the most part have been happening entirely behind the scenes.

El Paso adult probation broke, nearly can't make payroll, may seek state bailout

There's a remarkable story developing in El Paso at the West Texas CSCD, according to a local TV station. The local probation department is broke, and in December came within 48 hours of not making its payroll. The probation chief has been sent on vacation pending his retirement in May, but it's not clear if the budget shortfall is due to mismanagement or structural financial problems. Either way, insiders fear that soon POs' paychecks may stop flowing. Reported KTSM:

what's going to happen if the department can't pay its employees? We have confirmed that is an issue the department may be facing. A manager for the County Auditor's office says Adult Probation is low on money, and has come close to not meeting payroll.

"In 2007 there was a surplus of three million dollars. Last year, there was a surplus of one million dollars. In 2011 they have a cushion of 64 to 69-thousand dollars," Defense Attorney Theresa Caballero said.

Caballero told us she saw a financial update that showed for the past few years Adult Probation has been blowing through budget.

"In December the Probation Department, it said this in the financial report, was 48-hours away from not being able to make payroll," she said.

A source within county government says the probation department's financial trouble is the reason its oversight committee, the Council of Judges, called an emergency meeting. We were immediately booted from the room, and when the meeting was over we were told Stephen Enders, the Director of the Probation Department, was going on vacation until he retires May first. ...

Our source tells us the Council of Judges wasn't happy about the financial situation and that the vacation was forced.

No way to tell from this intriguing tidbit exactly what's going on, but the final lines of the story say the department may seek a state bailout if it runs out of funds. I've sent off an open records request to the county auditor for the referenced report, so perhaps we'll know more in a few days if I can get my hands on it.

Austin City Council flouts Open Meetings, Public Information Acts

The Austin City Council not only for years has been violating the Open Meetings Act through a "walking quorum" - with the Mayor meeting one-on-one or one-on-two before council meetings to deliberate instead of discussing city business publicly - it turns out they've got a secret texting system where they immediately delete conversations in order to intentionally subvert the Public Information Act. And they've used private email accounts for city business on the (flimsy) hope that they wouldn't be subject to public disclosure, as required by law.

My old pal Ken Martin at The Austin Bulldog broke the story and has actually filed a lawsuit against the City - bully for him! - to stop what amounts to a conspiracy to violate the Public Information and Open Meetings Acts. (In the interest of full disclosure, I should add a fact I didn't know when I mentioned Ken's work the other day - my wife is actually on the board of directors of The Austin Bulldog's 501c(3). We've only been together 20 years, you'd think I'd have known that! OTOH, I've known Ken even longer than that.)

Martin has been hammering away at the city for concealing emails, texts and other communications that should be subject to the Public Information Act, and hit a home run when he discovered references to a texting system called "Spark," on which council aides explicitly instruct one another how to disable the chat history so the records will be (illegally) deleted. Reports the Austin Statesman:

The city released hundreds of e-mails last week that were exchanged among council members. Council Member Mike Martinez, who turned over fewer than a dozen e-mails initially, disclosed hundreds more Wednesday.

The lawsuit alleges that not only did council members fail to give the Bulldog all the e-mails from their city e-mail accounts that fall under the records request, but that council members didn't turn over other messages about city business, such as text messages from mobile devices, e-mails from private accounts and instant messages sent on a city program called Spark.

In a July 2009 e-mail, an aide to Council Member Randi Shade encouraged the use of Spark, noting that all e-mails from city accounts are subject to open records requests, and: "In the heat of a Council meeting you may wish to communicate sensitive constituent information with your Council Member that would not be appropriate for all of us to enjoy in the Statesman the next day."

The aide, Glen Coleman , included a link from another staffer with instructions on how to delete previous Spark messages and disable the "chat history" function so future messages can't be saved.

It's telling, I think, that it took an independent nonprofit news source like the Bulldog to break this story, when a phalanx of reporters truck in and out of City Hall every week from the MSM and we never heard word one about this. Indeed, the more frequent media reaction was to ridicule Austinites calling for openness as some sort of Jacobite horde who just irrationally hated the City Council, when in fact the folks, for example, who pushed Proposition One (myself included) were reacting to a growing veil of secrecy that Martin has now documented beyond any reasonable doubt. As I wrote after that initiative failed, that controversy "forced the local Austin print media, the Austin American Statesman and the Austin Chronicle, to choose sides: Are they insiders and power brokers, in which case they benefit from secrecy? Or are they journalists who benefit from public information? News flash: They're insiders." The Austin Bulldog shows the best journalists don't need insider connections, they just need for democratic protections like the Open Meetings and Public Information Act to function as they're supposed to. In Austin, under the current City Council, they do not.

As I said the other day of the Austin Mayor's "walking quorum," the deletion of council communications is illegal, particularly if it's done intentionally to get around the Public Information Act. An increasing opacity at the Austin City Council has had a serious, negative impact on public discourse across an array of issues for the past decade. What's more, the people responsible know better but thought they were smarter than everybody else and could get away with it.

Now the question falls to County Attorney David Escamilla: Will they?

Police arguments against recording interrogations allow fear to impede self-interest

Some law enforcement interests, to me, inexplicably, have come out against legislation carried by Rep. Pete Gallego and Sen. Rodney Ellis requiring police to record interrogations in serious violent crimes. The DAs are split - some want interrogations recorded because for them it's more and better evidence - but police unions and a handful of law-enforcement agencies have been adamant against the legislation.

The complaints are familiar: Police think the purpose of the video is to play "gotcha," to try to accuse officers of misconduct, that the public is too unsophisticated to understand the techniques used in interrogation (such as lying to suspects or attempting to intimidate them), and secondarily, that the expense and practical requirements of recording would be too onerous.

I say they're familiar because in 2001, (for the most part) the exact same people made the identical arguments against requiring law enforcement agencies to record police-citizen interactions involving patrol officers with dashcams, arguably the most important measure in landmark racial profiling legislation passed that year carried by state Sen. Royce West. Back then, Texas cops portrayed recording street encounters as "Big Brother" looking over their shoulder, as an attack on police offficers, creating a record which, in their minds, served no other purpose than accusing police of misconduct.

In actual practice, though, exactly the opposite turned out to be the case. Dashcam video did and does occasionally catch instances of police misconduct, but MUCH more often it debunks complaints against officers, providing irrefutable proof against false or inflated allegations. Dashcams protect officers in the street, or at least the vast majority of them who are doing their job the way they should. And when they don't, video gives police supervisors an excellent training tool, allowing them to identify areas where specific improvements may be needed or where officers made poor decisions that otherwise might not be apparent. In most cases the public never sees such video, but it provides excellent evidence in court, enhances both police training and oversight, and protects good cops from false allegations.

Today, even former critics of the 2001 legislation now say dashcams have been far more boon than bane for Texas law enforcement, particularly in DWI cases where video of intoxicated suspects have become a staple in drunk driving prosecution.

So given how utterly and profoundly wrong they were about video in patrol cars, I don't understand why the same law enforcement interests can't see that recording interrogations would provide the same benefits. Right now under Texas law, confessions must be recorded (or written) but not the interrogation that led to them. So inevitably, a common-as-dirt tactic by defense lawyers is to claim that unseen misconduct in the interrogation room led to a false or coerced statement. Recording interrogations in most cases will take that issue completely off the table. In the Brownsville Herald today there's a typical example from a capital murder case where a recorded interrogation would have been helpful:

In a pretrial hearing last year, a video statement [Ernesto] Martinez gave to Brownsville police was aired in which Martinez admitted to killing [Barry] Horn
.
Martinez said he was drunk and angry when he killed Horn. He said he stabbed Horn several times because he was upset over an assault at Horn’s home on Flor de Mayo two weeks earlier.

“I got very drunk because he raped me a couple of weeks before,” Martinez said in one of two video statements he made to Brownsville police on Oct. 26, 2009. “I did it. I did it, sir, because he raped me.”

Martinez’s attorneys had tried to get the statements suppressed, but 404th state District Court Judge Elia Cornejo Lopez denied the motion.

Martinez had claimed he was coerced into making the statements and did not understand his Miranda rights when he spoke to police.

Claims of coercion, inadequacy of Miranda, etc., are common, but if interrogations are recorded, there will usually be no need for such pretrial suppression hearings. As it stands, this defendant will likely continue to appeal based on an allegedly coerced confession, and there's no hard evidence besides the officers' say-so to prove to a certainty there wasn't coercion. Why not gather evidence up front that coercion didn't occur, since it's alleged so frequently? Even though most judges and juries tend to give officers the benefit of the doubt, as happened in this case, it'd be better to take the issue off the table entirely. And there would, of course, be a small minority of cases where misconduct is recorded. But by the same token, it would also serve as a preventive and perhaps there'd be fewer such incidents if police knew their actions would be caught on tape.

Just as importantly, when innocent people do falsely confess - which happens perhaps more commonly than one might expect, particularly in high-profile crimes - recording interrogations provides a record that can later help exonerate them. A terrific example was cited in the House Criminal Jurisprudence Committee last week by Mike Ware from the Dallas DA's Conviction Integrity Unit: The case of Stephen Brodie, a deaf man who falsely confessed after 18 hours of interrogation, much of it with no interpreter present. After discovering physical evidence in the old case pointing to another suspect (a fingerprint from a man who later actually confessed to the crime for which Brodie was convicted in an unrelated plea deal), the Integrity Unit closely reviewed a recording of Brodie's interrogation and found more than 40 instances where his statements failed to match other evidence and known facts. His recorded confession, of course, was more truncated and didn't betray those same inconsistencies, but because they'd saved the video record of the interrogation, Brodie was able to be exonerated despite the lack of DNA.

That right there is worth the cost of admission, and it's why groups like my employer, the Innocence Project of Texas, are pushing for recorded interrogations. But as a practical matter cases like Stephen Brodie's are much less common than are accusations of coercive interrogation in the face of a vacuum of evidence, as in the capital murder case in Brownsville. That's why, according to the national Innocence Project: "To date, Illinois, Maine, Maryland, Missouri, Montana, Nebraska, New Mexico, North Carolina, Oregon, Wisconsin, and the District of Columbia have enacted legislation requiring the recording of custodial interrogations.  State supreme courts have taken action in Alaska, Iowa, Massachusetts, Minnesota, New Hampshire and New Jersey.  Approximately 500 jurisdictions have voluntarily adopted recording policies."

This bill would simply require recording in serious violent crimes (so-called 3g offenses). If interrogators failed to record, and if their reason for not recording doesn't fall under a lengthy list of allowed exceptions, the confession would still be admissible, but with a jury instruction informing jurors that police should have recorded the interrogation, but didn't. Nobody's confession would ever be excluded just because police failed to follow this statute.

Finally, I find the cost issue a red herring. On dashcams, I was much more sympathetic. Those really are expensive systems and the state issued $18 million in bonds to finance them for local police agencies. (The very largest - Dallas and Houston - didn't get cameras for all their cars because the state ran out of money, but smaller agencies did if they applied.) But for recording interrogations, these days the equipment is cheap. Sure, you can spend thousands to outfit an interrogation room with hidden cameras and recorders, but you can also spend $40 at Radio Shack to buy an audio recorder capable of many hours of uninterrupted recording. For that matter, any laptop or desktop computer can be outfitted to record, and storage of digital recordings these days is electronic, requiring little physical space or ongoing maintenance. Most agencies already have audio and/or video recording capacity in some form or fashion. And if some podunk department is so small it can't afford such technology - and I don't doubt they're out there given that Texas has more than 2,500 law enforcement agencies, some of them truly minute and obscure - maybe they shouldn't be the ones investigating serious violent felonies in the first place! That's what the Texas Rangers are for. Call 'em in, or else hand off such cases to agencies with sufficient resources to properly investigate.

Other than issues of cost, fear (sometimes bordering on paranoia) of the new and unknown seems to be what's driving opposition to recording interrogations, perhaps influenced by recent negative experiences Houston PD has had with video evidence of police misconduct in the field. I not only think those fears are overblown, I strongly suspect that once recording interrogations becomes the norm, just as with dashcams, this tool will quickly come to be viewed as all-but indispensable, providing stronger evidence in court, plus protecting good cops doing their jobs and innocent suspects who falsely confess. I just don't see the downside.

See related Grits coverage:

• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Newspapers don't like John Bradley, and now Galveston jail inmates can read about it

Here are a few quick items that would merit more attention if I had time today:

Houston's latest DNA exoneree
Texas latest DNA exoneration came out of Houston this week involving a man who spent 17 years incarcerated after being falsely convicted for kidnapping and rape. Though he's already been paroled, thanks to Judge Pat Lykos' Post-Conviction Review Section he'll now get off supervision and become eligible for state compensation. "The district attorney's office says DNA analysis on the only remaining evidence -- hair collected during the original sex assault examination -- cleared [George] Rodriguez and led them to the actual offenders, who they say are Manuel Beltran and Isidro Yanez."

Anthony Graves sues for innocence
After the Comptroller refused compensation ad the Governor said he's not eligible for a pardon (both wrong decisions in this writer's view), Anthony Graves this week had to sue the Attorney General in district court seeking a declaratory judgment declaring him innocent before he'll become eligible for compensation.

Reentry at risk in budget crunch
In a cover story titled, "Freedom's just a word," Texas Observer reporters Michael May and Laura Burke say "Texas is finally helping former prisoners. But can the smart-on-crime revolution survive budget cuts and a suspicious public?"

Galveston inmates get to read
In Galveston, a lawsuit brought by the Prison Legal News and the Texas Civil Rights Project has been settled overturning a policy of disallowing reading material to jail inmates and beefing up the jail law library.

Piling On: Newspapers don't like John Bradley
The Austin Statesman and the San Antonio Express News have joined the Houston Chronicle in editorializing against Williamson County DA John Bradley's confirmation as Forensic Science Commission Chair, and the Dallas News plans a similarly themed editorial. Of course, Grits criticized the nomination before it was cool. :)

'Time running out for Driver Responsibility Program amnesty' - 54,000+ now rid of surcharges

Just got this press release from the Department of Public Safety:

Time running out for Driver Responsibility Program amnesty

Of the 713,444 people who are eligible to participate in the Driver Responsibility Program amnesty, only 54,035 (about 7.5 percent of the total) have signed up so far. The amnesty program allows delinquent drivers to pay just 10 percent of the original amount owed on all surcharges combined, or a maximum of $250.
 
Drivers are not required to make a payment when they sign up, however they must pay off all money owed by April 17 to retain their driving privileges. Eligible drivers have until April 7 to sign up for this program and must pay all surcharge amounts by April 17.
 
This one-time amnesty applies to drivers who had a surcharge assessed between Sept. 30, 2004, and Dec. 31, 2008, and are delinquent on those payments.
 
Once the online or telephone application is approved, the surcharge suspensions will be cleared on the applicant’s driving record within three business days. After three business days, the applicant can review the reduced amount on line and begin making the necessary payments. 
 
To apply for the amnesty program, see the surcharge website at www.txsurchargeonline.com or call 1-877-207-3170. No requests will be accepted by mail, e-mail or fax.
 
The Driver Responsibility Program, which assesses fees for a variety of driving-related offenses, was passed by the Legislature in 2003 and directed the Department of Public Safety to administer the program. Traffic offenses that carry an automatic surcharge for three years include DWI-related offenses, no insurance, driving while license suspended, driving without a license and point accumulation. For example, the fee for a first-time DWI offender is $1,000 per year for three years. The revenue generated by DRP goes to trauma centers, emergency medical services and the General Revenue Fund.

While I'm gratified that these new rules - which were initiated after this blog and allies from the Texas Fair Defense Project organized and submitted a citizens' petition for rulemaking to the Public Safety Commission - have already helped more than 54,000 people, a 7.5% participation rate is disappointing. I'm still hopeful that probation departments will help notify DWI offenders under their supervision; Cary Welebob at TDCJ-CJAD told me they recently sent out notification to Texas probation chiefs about the amnesty opportunity, so maybe that will help boost the numbers..

I'd still like to see legislation by Sen. John Whitmire and Rep. Leo Berman get rid of the Driver Responsibility program altogether, but the big hitch is replacing the money it generates in a tight budget year, particularly for trauma center hospitals. (In the Senate, Whitmire's bill was referred to the Finance Committee, where notably Chairman Steve Ogden authored the 2007 legislation that allowed DPS to create the Amnesty program.) My view: In order to resolve health and education spending issues, the Legislature will this session be forced to radically restructure its revenue generation models, probably raising taxes in some areas (whatever is said publicly, the shortfall is just too large), and those changes will be dealing with very large numbers, in the billions, dwarfing the DRP revenue. IMO funding for trauma hospitals should be subsumed in whatever financing fix the Lege makes for healthcare generally. Indeed, it wouldn't bother me to just see that relatively small amount added to the gas tax, since auto accidents account for such a large proportion of trauma center demand. I don't mind state government providing support to hospital trauma centers, this is just the wrong way to do it.

In the meantime, though, this Amnesty program is open and active for another six weeks, no matter what happens at the Legislature. If you or someone you know owes the Driver Responsibility surcharge and meets the eligibility requirements, I hope you'll take advantage of the opportunity. It took a year-long campaign to get the PSC to approve Amnesty and one hopes that those who might benefit won't waste a hard-earned opportunity.

Texas 10-12K prison beds short under Senate, House budgets, eyewitness ID clears committee

Mike Ward at the Austin Statesman had good coverage of Tuesday's Senate Criminal Justice Committee hearing, where I spent my day (on behalf of the Innocence Project of Texas) waiting to testify on legislation to require law enforcement agencies to create policies on eyewitness identification procedures and authorize a statewide model policy implementing best practices. See Mike's coverage:

• Exonerees support eyewitness ID rules
• Report: Prison cuts could cause bed shortage in two years

Faulty eyewitness IDs responsible for hundreds of false convictions
Sen. Rodney Ellis' eyewitness ID bill passed out of committee unanimously, with an an inconsequential cleanup amendment from Sen. Joan Huffman, just as Chairman Pete Gallego's companion bill passed out of House Criminal Jurisprudence Committee last week. Since that legislation two years ago died because of time as opposed to any vocal opposition (and no one testified against it in either committee this year), that bill appears to have a good chance of passage.

Exonerees who testified had spent between 13 and 30 years falsely imprisoned, and as always their testimony was powerful and moving. It's quite an honor and a humbling experience to get to work with those guys. I find it unimaginable what's been taken from them, not to mention the courage it takes to have endured such a trauma and then keep coming down to the Legislature to tell them "Change the system so this doesn't happen to somebody else." (Watch the video here; testimony on SB 121 (Ellis) begins at the 58:05 mark.)

Except it is happening somewhere in Texas, arguably, every day Texas courts are open for business. DNA testing has given us a narrow window into the causes of innocent people being convicted - mainly false eyewitness identification, mendacious snitches, false confessions, faulty forensics, and ineffective assistance by defense counsel - but those problems arise every day in many cases that don't have DNA available to clear a falsely accused of defendant. Eyewitness identification errors were involved in the vast majority of DNA exonerations (75% nationally, 80% in Texas), so this bill arguably is the most important piece of preventive policy legislation on the subject the Lege will consider this year.

That was the subject of my own testimony to the committee: The exonerated men who testified, I reminded senators, represent just a small sample out of hundreds or even thousands of other innocent people locked up who weren't so lucky. DNA evidence exists in fewer than 10% of violent crimes, and not at all in crimes like robberies where use of eyewitness identification involving strangers can be key to a conviction. So off the bat, DNA exonerations represent less than a tenth of the total number of innocent people locked up. Then consider that Dallas is the only major jurisdiction that a) kept old DNA samples and b) went back to vet old cases for possible innocence claims. If other counties had done so, there'd be a lot more exonerated men (and maybe even a few women) clamoring to testify in favor of changing eyewitness ID procedures.

Relating estimates of actual innocence from various sources (rounded up recently in this post), which range from .75% to 3.3%, one gets a range of 1,200 to 5,000 estimated innocent people currently locked up in TDCJ. Having examined every published estimate I'm aware of and their methodologies, my own personal belief is that the number of people currently incarcerated in TDCJ who are innocent of the crime they were convicted of is likely 2,000 to 3,000 - maybe higher but probably not much lower.

When you think about it, that range makes sense. Convictions are secured when there is evidence "beyond a reasonable doubt," but not "beyond any doubt." So we assume the system convicts in cases with some doubt, meaning that going in we know sometimes the system gets it wrong. Let's say for the sake of argument that "beyond a reasonable doubt" means a fact finder is 98% sure they're convicting a guilty person. Whenever that standard is applied, 98 times out of 100 the right person goes to prison and twice they convict the wrong guy. But there are a lot of people in Texas prisons, 154,000 or so, which means applying that proportion to the whole system would put the number of incarcerated innocents just over 3,000. If you think "beyond a reasonable doubt translates into 99%, figure perhaps 1,500 or so innocent people are in prison. Either way, Texas' 42 DNA exonerations so far represent just the tip of an iceberg.

Fabelo predicts prison bed shortages without policy changes
At the beginning of the hearing, the committee heard testimony from Dr. Tony Fabelo who described prison population trends and projected the number of increased prisoners faced by the state if diversion programs are cut as anticipated in the House and Senate budgets. By 2013, he said, under the House budget as filed the state would be 12,857 beds short; under SB 1 on the Senate side, TDCJ would be 9,634 beds short. In other words, under either budget Texas will need to build or lease several new prisons over the next two years. (Watch the testimony here, Fabelo is the first speaker; here's a link to his power point presentation.)

Boiling it down, Fabelo said Texas has only two real options: "Reduce the size of cuts" or "Change policies to reduce demand for prison space." That's it, pick your poison. Building or leasing new prisons isn't an option if you want to cut $786 million from TDCJ's requested biennial budget, as Gov. Perry and the House have proposed. The only remaining path is to "Change policies to reduce demand for prison space."

He offered three policy suggestions at the end of his presentation to reduce prison numbers. Option 1 involves implementation of LBB Performance Report recommendations, including a "supervised reentry program for those presently released after completing their [full] sentences." In other words, when someone has completed, say, 90% of their time or have one year to go, they'd be paroled so that their initial reentry period would occur under supervision. That would reduce the prison population by 1,800 over the next two years and up to 9,000 inmates over the next five, says Fabelo.

The second option suggested: "Reintroduce SB 1909 from 2007 and passed by the Senate that requires mandatory probation and treatment for low level drug possession." The five year fiscal benefit to the state would total $500 million. Sen. Rodney Ellis is carrying the bill again this session.

A third option might free up 6,000 additional beds, said Fabelo: Shock probation on technical revocations, capping the time in prison for property and drug offenders revoked on technical violations to no longer than 12 months. That idea is not dissimilar from Grits recent suggestion that judges be required to more frequently utilize Intermediate Sanctions Facilities for technical violators. However you decide to skin that cat, the state can find large cost reductions by changing how they deal with that category of offenders.

Fabelo also suggested taking measures to edge up parole rates toward levels anticipated by the Board of Pardons and Paroles' official guidelines, noting that a 1% increase in the parole rate would reduce the inmate population by 1,500, while a 1% decline would increase the prison population by a like amount. Presently the overall parole approval rate is just above 30%; increasing it to 35%, which is the rate suggested by the board's official guidelines, would free up thousands of beds. There are seven risk categories to which potential parolees are assigned, and it's the lowest risk parolees who are being released at below-guideline rates, i.e., the lowest-risk offenders are the ones the parole board is holding onto longer than the guidelines suggest, a situation that's been happening as long as I've paid attention to the Board of Pardons and Paroles. The BPP could singlehandedly solve this conundrum of their own accord, but they appear to have little interest in doing so unless somebody (read: the Legislature) makes them.

These aren't the only policy changes that would do the trick; indeed, they're really rather modest proposals compared to more aggressive approaches advocated on this blog, and IMO the Lege should go farther. But at least we've finally reached a point - for the first time, to my knowledge, publicly - where legislators have acknowledged that policy changes affecting sentence length must accompany cuts at TDCJ. That's been obvious for more than a year, but at least they're beginning the conversation in earnest now.

Bradley nomination for forensic chairman dead?

The Austin Statesman and other news outlets today reported that the Senate has severed Williamson County DA John Bradley's nomination from other members of the Forensic Science Commission because Democrats have enough votes to block him from being considered on the floor under the Texas Senate's 2/3 rule and have told the chair of the Nominations Committee they intend to do so.

It's not over, though, because the Lieutenant Governor intends to have Bradley back in for some personal lobbying: "Dewhurst said that after he talks with senators who are blocking Bradley’s nomination, 'it may be that we’ll want him to come in and talk with some of them one on one.' After that, he said, “we’ll see where we are on the votes,” when asked when Bradley’s name may come up for a vote,"  reported the Statesman's Mike Ward.

Still, Bradley's nomination is on life support and will die if Democrats stick together. Quite extraordinary. Though Grits editorialized against his nomination before the committee hearing, I can't say I expected him to go down.

MORE: From Paul Burka: "Bust him."

Blackburn: 'We have created a permanent class of underperformers in criminal defense cases'

The State Bar's Standing Committee on Legal Services to Poor in Criminal Matters has just released a new set of Performance Guidelines for Non-Capital Criminal Defense Representation (pdf), which are particularly focused on heretofore largely absent standards for indigent defense. My boss from the Innocence Project of Texas, Jeff Blackburn, chaired the committee that developed these new performance standards, and yesterday I asked him about them as a test-run for Grits' first-ever podcast (around 9 minutes). As you can tell from the quote in the title of this post, Jeff doesn't mince words when criticizing criminal defense lawyers who don't meet these standards, which he says "any jackwagon lawyer ought to be doing":




I've been meaning for a while now to develop podcasting capacity, and thanks to Grits contributors for financing the equipment, software, etc.. I'm still working out the kinks and don't know how often I'll be doing such interviews - I've got a face made for radio and a voice made for print, sad to say. But in this case I figured it'd be easier to ask Jeff to describe the guidelines than read them myself, so here you go. :)

RELATED: There's a summit on indigent defense going on at the capitol today sponsored by the Task Force on Indigent Defense, which you can view via livestream here.

MORE (3/2): A helpful reader had this interview transcribed, and I've posted the text on Google Documents here.

Ellis: DA used forensic chairmanship to 'seize power,' 'thwart the will' of the commission, 'hide' its work from the public, increase 'bureaucratic bloat,' and 'slow its impressive progress to a crawl.' Otherwise he's doing great

State Sen. Rodney Ellis sent out a press release yesterday asking his fellow senators to reject Williamson County District Attorney John Bradley's nomination as chair of the Forensic Science Commission. 

Failure of leadership at Texas Forensic Science Commission Raises Concerns
 
(Austin, Texas)//Senator Rodney Ellis (D-Houston) today urged the Texas Senate to reject the nomination of Williamson County District Attorney John Bradley for the remainder of his term as Chair of the Texas Forensic Science Commission.  The Senate Nominations committee voted 4-2 to send Mr. Bradley's nomination for consideration by the full Senate.
 
"The Legislature created the Forensic Science Commission to ensure we have forensic evidence we can trust in our courtrooms --in order to increase public safety and the public faith in justice system," said Senator Ellis.  "Unfortunately, since Mr. Bradley has taken the reins, rather than move the commission forward to look into allegations, find the truth, and repair problems in our broken justice system; the Commission has invested most of its time and energy finding ways to avoid looking into problems and looking for loopholes to block the commission from doing what it was created to do."
 
In 2005, the Legislature created the Texas Forensic Science Commission to restore public faith in forensic evidence following the discovery that a series of serious errors called into question evidence in hundreds of cases across the state.  The commission is yet to complete a single investigation.  In 2009, just as the Commission was poised to begin completing its first investigation -- a review of the evidence used to convict and sentence to death Todd Willingham -- Mr. Bradley was appointed Chair of the Commission. 
 
The Commission is still yet to complete any investigation.
 
After boasting that he knew nothing about the Commission, Mr. Bradley's first move was to unilaterally cancel that meeting, stunning the public and policymakers, as well as his fellow Commission members.  According to press reports, Mr. Bradley then ordered all Commissioners to delete their Commission-related emails, and declared that he wouldn’t let the Commission meet until he had time to learn more about it.  Mr. Bradley displayed a shocking lack of objectivity in his work by declaring to the press that “Willingham is a guilty monster,”  a clearly inappropriate statement  from the Chair of a state Commission tasked to provide independent, expert investigations of allegations of forensic negligence or misconduct.
 
"We wanted independent experts to form a lean, efficient, and non-paid publicly review allegations of problems, investigate them, and report to the public about what it had found so that the public and thus all jurors could regain faith in forensic evidence – and thus convict the guilty and not convict the innocent," Ellis said.  "Sadly, Mr. Bradley has used his position to seize power over and thwart the will of the expert Commission, hide the Commission’s work from public view, greatly increase the Commission’s bureaucratic bloat, slow its previously impressive progress to a crawl, and otherwise prevent the Commission from accomplishing the legislature’s intent."

That pretty much sums it up.

Mr. Bradley may have a problem. If the Democrats all stick together, they theoretically have enough votes to sever his nomination and block it from coming to the Senate floor because of the 2/3 rule. And it wouldn't surprise me if some Senate Republicans agreed that Mr. Bradley's agenda-driven approach and bellicose comportment, on full display at the Nominations Committee, was a poor fit for a panel full of scientists charged with objectively evaluating forensic questions. (Last session, one of Governor Perry's appointees to the Board of Pardons and Paroles, Shanda Perkins, was scuttled on a bipartisan 27-4 vote, with some senators who'd voted for her in committee voting against her on the floor.)

I'd like to see Bradley's nomination rejected outright, but even if he stays on the Commission, the Lege should change the law to let commissioners select their own chair. There's an opportunity this session, either way, for the Forensic Science Commission to be reinvigorated with leadership that actually cares about accomplishing the agency's mission instead of thwarting it. Rejecting John Bradley's nomination would be a terrific first step toward that goal.

RELATED: See Grits arguments against Bradley's nomination and coverage of the hearing.

TDCJ closure of 'Intermediate Sanction Facilities' exactly the wrong budget cutting strategy

Regular readers know TDCJ recently released its finally approved cuts to be implemented the current fiscal year (i.e., immediately, in the current budget cycle; see this pdf summary). And yesterday I linked to a story quoting the probation chief in Beaumont, who argued that cuts to diversion programming will boost much more expensive prison costs. Especially troubling in that regard is the agency's decising to close one Intermediate Sanction Facility (ISF), put off opening another one, and eliminating Project RIO, the main employment assistance for ex-felons in Texas.

It's hard to overstate how precisely back-assward these cuts really are, literally the exact opposite of the approach the agency should be taking. And they bode ill regarding what priorities will be applied as TDCJ makes much larger cuts in its budget for the next biennium.

It's easy to see why cutting employment and reentry services is a bad idea because every offender when they leave prison has a choice to make whether to resume a life of crime. Having a job and a stable income make the right choices a lot easier to make. That first year to 18 months is pivotal in determining whether an offender will recidivate, with getting a job and staying off drugs among the most predictive factors. Given that, cutting job assistance for ex-offenders quite arguably could increase crime.

Texas has loads of prison capacity (155,000 beds, mas o menos), most of it full, but in many ways we have the wrong kind of facilities. In the '90s, Gov. Ann Richards and the Democrats pushed to triple Texas' prison capacity, building large warehouses designed to incapacitate offenders, but mostly (despite stated good intentions to the contrary, the type with which the road to hell is paved), they never provided treatment, rehabilitation or reentry services, much less an effective means for judges to apply short-term consequences for probation or parole violators. The result: Even technical violators were revoked for a full prison term.

Intermediate Sanction Facilities are new units created as part of the 2007 probation reforms to give judges somewhere to send probation and parole violators for short-term punishment without revoking them for their full prison for their full stint. That way, somebody with a string of technical violations but no new crimes, in theory, could be punished for their noncompliance with short-term incarceration without TDCJ and Texas taxpayers having to foot the bill for their full prison sentence. The problem has been that judges have been slow to use ISFs and continue to revoke offenders for technical violations at higher-than-reasonable rates. According to the latest data, "In FY2010, there were 24,239 felony revocations to TDCJ, of which 48.8% were a result of technical violations community supervision conditions."

Texas' 2007 probation reforms were permissive, giving judges new tools and options, but if so many judges refuse to utilize those tools, that amounts to an "unfunded mandate" in the other direction, from the county to the state, and it's in the state's interest to limit how much extra cost counties can inflict on the state coffers when cheaper options are available.

This is what Grits means when I've argued for "finishing" the 2007 probation reforms: We've created mechanisms that could help solve the problem, but the reforms' effectiveness appears to have hit a wall after achieving initial reductions, in part because of noncompliance by key counties and nonparticipation by others. But the strategy is still sound: Reduce the number of offenders revoked for their full sentences on technical violations by, say, an additional 30%, and that's more than 3,500 fewer prisoners entering TDCJ to serve long-term sentences every year. It's not a silver-bullet solution, but it's a piece of the puzzle that would go a long way toward allowing the agency to close more units and stave off predicted, short-term prison population increases.

To make that happen, IMO the law should be strengthened to require judges to use ISFs for technical-only violations (with defined exceptions for special circumstances) instead of merely creating the facilities and giving judges discretion to do so. Too many - especially in Collin and Bexar Counties, but also elsewhere - just won't use that discretion and still revoke lots of technical-only offenders to TDCJ. If somebody's committed a new crime, fine, then revoke them. But if a probationer had dirty UAs, missed meetings, didn't pay fees, or even absconded, short-term incarceration in ISFs is often the better option. It's both cheaper for the state and gives the offender a chance to change their behavior instead of punishing them for years at the taxpayers' expense.

Regrettably, TDCJ's 2011 budget cuts go in the opposite direction, closing the North Texas ISF (whose contract expired yesterday) because, "Based on utilization trends and available beds, this facility is currently not required in order to meet program demand." Same goes for an ISF facility in Jones County which was slated to open last fall, but "Due to the slower than anticipated growth in SAFP/ISF utilization, this facility has not been opened and is not needed at this time."

The solution here isn't to close ISF capacity but to force the system to use them where appropriate, overruling recalcitrant judges by statute for certain classes of technical-only violators, even absconders when there is no other criminal charge (again, with exceptions for special circumstances, which I'm sure our friends the DAs and probation directors would immediately point out for us). Don't eliminate diversion resources because they're underutilized, force judges to use them before revoking people to prison. That would let the agency reduce reliance on long-term facilities in order to shut down older, more expensive units, as well as those with chronic understaffing.

I'd also like to see judges compelled instead of merely authorized to grant early release from probation for successful probationers sentenced on lower-level offenses. The 2007 reforms required judges to consider it halfway through the sentence, and the number of early releases climbed dramatically, though from a very low starting point. Much more, however, could be done. The main reason such probationers are kept on the rolls is that they pay fees that sustain the department's budget, a motive that will become even stronger if TDCJ's suggested cuts to CSCDs are enacted. But petty offenders clog up caseloads and divert focus from supervising more dangerous folk, and caseload sizes are about to skyrocket under the proposed House and Senate budgets. Plus, keeping low-risk probationers on the rolls heightens the chance that a minor incident years after the fact will result in a long prison sentence. Letting probationers earn their way off supervision through good behavior just makes good sense from the standpoint of managerial efficiency, reduced recidivism and simple economics.

There are plenty of other policy changes that could be made to reduce Texas' prison population without harming public safety, but strengthening diversion programming instead of eliminating it should be at the top of the Legislature's list. This round of FY 2011 cuts takes the knife to the wrong part of TDCJ's budget.

RELATED: From the Dallas News Crime Blog, "Dallas county officials warn that state cuts to probation will fill jails and prisons."