Townsend: 52% in Texas youth prisons suffer mental health problems

It's been frequently observed that adult jails and prisons are becoming society's de facto inpatient mental health facilities because they incarcerate so many offenders with serious mental illnesses. But if official data are to be believed, that may be even more true in the juvenile system. Reporting on a House Corrections Committee hearing yesterday on juvenile justice, AP says ("Mental health issues common among youth prisoners," Mar. 7) that:

More than half of the people in Texas' youth prisons have a moderate or high need for mental health care, and officials should improve their early intervention efforts to help those young people before they end up behind bars, the head of a new state agency told lawmakers Tuesday.

Cherie Townsend, executive director of the Texas Juvenile Justice Department, said more than 52 percent of teens and other youngsters held at the state's six juvenile detention facilities have been diagnosed with at least moderate mental health problems.

Including those with at least some kind of mental health care needs would make that tally much higher, she said.

"The numbers are increasing, and the percentages are increasing," Townsend told members of the Texas House Corrections Committee, referring to the number of juvenile detainees who have mental health problems and their proportion of the state's total youth population at detention facilities.

Not everybody, though, agreed that Texas youth prisons are morphing into insane asylums. One legislator suggested perhaps overdiagnosis played a role:

Rep. Charles Perry suggested authorities might be classifying too many young people as having mental health problems.

"I'm a little nervous about the discussion," said Perry, a Lubbock Republican, "because I know kids that act out that have no mental health issues, and just act out because they act out."

I don't doubt that mentally ill youth disproportionately end up in youth prisons and it wouldn't surprise me if the ratio is greater than in the adult system. But I also agree with Rep. Perry that youth in the juvenile justice system may be diagnosed with mental illnesses too frequently, and sometimes inappropriately, in hope that their behavior issues can be medicated away - or as so-called "chemical restraint." Hell, it's well known that some schools and psychiatrists promote psychoactive drugs at relatively young ages to counter children's behavioral problems, even for non-delinquents. Foster children are also reportedly overmedicated. So it's unsurprising that youth who've worked their way up to outright criminal behavior have racked up enough diagnoses and prescriptions over the years to appear on paper as though they're suffering from a mental illness. In some cases, that's surely true. But particularly with some common diagnoses, often the child's most fundamental problems stem from other issues like, say,  a crappy home life, absent or ineffective parents, poverty, grief, etc..

Recently Grits mentioned the irony that the Texas Youth Commission had prescribed an off-label antipsychotic medication more than 3,000 times during the same period that the AG was suing the company for marketing the drug for use with juveniles without adequate FDA testing. Given such examples and the ubiquity of overmedicating children, I'm not sure it's appropriate to define the number of mentally ill youth by the number receiving some psychoactive drug. Those medication decisions in some instances may tell us more about our society's desire to fix every problem with a pill than they do about the real mental health needs of the majority of Texas youth prison inmates. (Grits can't back that assertion up with data off the top of my head, but that's my sense.)

That said, I also notice Townsend's 52% number is for youth with "at least moderate mental health problems." By contrast, when similar numbers are calculated in the adult system, they only include diagnoses for the three categories of severe mental illness prioritized by the Department of State Health Services - major depression, schizophrenia, and bipolar disorder. So, though 52% sounds like a much larger number than the 1/4 to 1/3 of offenders with mental illness in the adult system, those aren't apples-to-apples comparisons. Perhaps if you included those with "moderate" mental illness in the adult system, the number would rise above 50% as well. Last week the House Criminal Jurisprudence Committee heard testimony that the adult justice system often ignores treatable mental health problems like anxiety disorders that can have as significant a crime-causing effect as the "big three" diagnoses.

What do you think? Are there disproportionately that many more mentally ill inmates in youth prisons than adult ones? Is the statistic misleading because of over-diagnosis and over-prescription? Or are youth inmates being treated at appropriate levels - dealing with "moderate" instead of only "severe" mental illness - and it's the adult system that's underdiagnosed, because the state doesn't document any but the most extreme mental ailments?

Here's the link if you want to watch the 4+ hour hearing for yourself.

Montgomery Sheriff crashes drone into SWAT vehicle

One of the first civilian law enforcement agencies in the country to purchase an aerial surveillance drones last fall, the Montgomery County Sheriff's Office yesterday crashed a drone into one of its SWAT team's armored personnel carriers during a practice run. (Please let there be video!) Further, it wasn't just surveillance equipment crashing into the SWAT vehicle which IT World reports was "being loaded with weapons and ammunition for a training exercise."

Notably, DPS at one point was using unarmed drones both along the border and elsewhere in the state, but according to the Electronic Frontier Founation DPS recently canceled its drone program because of maintenance issues with the high-tech craft. (I'd not seen that widely reported.) DPS shut down its program, they told EFF, because, "drones did not offer Texas significant advantages over the agency’s existing airplanes and helicopters."

Despite costs and crashes, though, the Obama Administration is pushing ahead to approve drone use by many more civilian agencies on US soil by this summer, reports IT World:

Expensive, crash prone or not, unmanned aerial vehicles will become far more common in the U.S. following legislation signed by President Obama ordering the FAA to approve more UAVs for law enforcement and fire/emergency uses beginning in 90 days.

The FAA has restricted use of drones domestically due to concerns that UAVs flown by untrained operators would become a hazard to other aircraft and danger to people on the ground.

The Obama order gives the FAA until Sept. 30, 2015 to make legal drones that are lighter than 4.4 pounds and fly lower than 400 feet.

They won't just be for police, though. The legislation doesn't limit the uses for which its drones can be used, which will almost certainly make life much easier for paparazzi, stalkative exes and hordes of the intrusive, nosy and curious.

It will also make life much less private for a population struggling with the loss of privacy online and, very possibly, not yet ready to give it up in their backyards to crash-prone, high-maintenance r/c helicopters that may be relatives of the Predators and GlobalHawks of the world, but without the reliability, trained operators and reason for poking their noses into someone else's business in the first place.

If the Congress and the Obama Administration are pushing drones, might a Texas Legislature that last year battled the TSA over intrusive personal searches decide to regulate them, and if so would they have any authority to do so? For that matter, do cities have authority to regulate low-flying commercial drones, or is that strictly an FAA responsibility? ¿Quien sabe?

We seem to be at a "leap before you look" moment regarding drone technology. I'm sure there are benefits, but it looks like we'll be finding out the detriments the hard way.

Christmas in March for Amarillo man freed due to flawed forensics in child death

In a story earlier featured on PBS Frontline, NPR, and ProPublica, which brings the latest news, Ernie Lopez returned home to Amarillo yesterday after the Texas Court of Criminal Appeals invalidated his conviction because his defense attorney did not call expert witnesses to invalidate the science underlying his conviction for child sexual assault. The CCA "didn't absolve Lopez, but said there was a 'reasonable probability' that he would have been acquitted had his attorneys countered the medical evidence arrayed against him." Says ProPubica:

Lopez's story reflects a broader controversy. Increasing numbers of doctors and other experts are questioning the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people who were wrongly accused of killing children based on flawed or biased work by forensic pathologists have been cleared over the last 15 years.

The Texas court's ruling set the stage for Lopez to be released Friday on a $10,000 bond. His release order bars him from initiating contact with children, though he is allowed to spend time with his three children. It also requires him to wear an electronic monitoring anklet and to abide by a 10 p.m. to 6 a.m. curfew.

At his parents' home on the outskirts of Amarillo, Lopez celebrated the events and holidays he missed during his long confinement. The family even put up a Christmas tree.

Related: TX conviction overturned because of failure to challenge junk science in child death case.

LBB to explain recidivism report

Interested in how recidivism rates are calculated in Texas? This event in Austin later this week by the Legislative Budget Board may interest some of the wonks among you.

Our second spring Criminal Justice Forum is this Friday,  March 9th  at 1:30 P.M.  The attached flier has all the details.  These forums are open and appropriate for anyone interested in learning more about criminal justice issues in Texas.  Please forward this e-mail and flier to all whom you think would be interested.

 

If you have any specific questions on the subject of Adult Correctional Recidivism, please feel free to submit them to me in advance.  This is a suggestion from our previous forum feedback forms.  We plan to give it a try this time.  Below is a link to our report I will be presenting from and my e-mail address.  Also, there will be time during and after the forum to address your questions as well.\ 

Adult Correctional Recidivism – March 9, 2012* (1:30 p.m. – 3:00 p.m.)
Presenter: Michele Connolly
LBB analysis of adult correctional recidivism includes recidivism and revocation rates for various correctional populations. Recidivism is measured through both rearrest and reincarceration rates. This forum will explore the methodology, techniques, and historical trends associated with adult correctional recidivism in Texas.  http://www.lbb.state.tx.us/PubSafety_CrimJustice/3_Reports/Recidivism_Report_2011.pdf

Piling on the Tyler Morning Telegraph over cretinous murder-case coverage

Having mentioned the other day that Kerry Max Cook is seeking post-conviction DNA testing he hopes will formally exonerate him, and that local prosecutors were blasting him for it in the press, Grits wanted to point out some keen commentary by former Dallas Morning News reporter David Hanners, the journalist who first uncovered problems with Cook's conviction. Texas Monthly's Michael Hall wrote a notable blog post titled "What the 'Tyler Morning Telegraph' failed to tell you about Kerry Max Cook," and Hanners replied with this remarkable comment (edited only to break it into more readable paragraphs).

As the reporter for The Dallas Morning News whose stories initially raised doubts about Mr. Cook’s guilt, I believe I have a few observations I can offer to the discussion. The first would be that when it comes to Mr. Cook’s saga — and there’s no other word for it — the Tyler Morning Telegraph has never acquitted itself well. I’m usually hesitant to disparage another journalist or publication, but the Tyler paper’s history of coverage in this case has been a sad entry in the annals of objective and fair journalism. The paper has, time after time, taken the word of local police and prosecutors as gospel in Mr. Cook’s case and has done little, if any, real journalism. And, as the record reflects time after time, the word of police and prosecutors in this case has not been worth much.

I am probably one of the few people who has taken an objective look at Mr. Cook’s case. I wasn’t out to convict him and I wasn’t out to set him free. When I began looking into his case, it was to try and get an answer to a very simple question: Why did it take the Texas Court of Criminal Appeals nearly eight years to rule in his case? (As I would later find out, it was because the court basically lost the file.) Whether he was guilty or innocent really wasn’t an issue to me. But as I sat in the basement of the Supreme Court Building reading his trial transcript and looking through the exhibits, it became increasingly evident to me that, at the very least, Mr. Cook had not received a fair trial and, at may well have been innocent. The record (and the Texas Court of Criminal Appeals, eventually) has proven the former, and I am firmly convinced of the latter. I just don’t believe he killed Linda Jo Edwards.

In discussing this case with others, I have often described it as Murphy’s Law personified. Everything that could go wrong, did. The initial police investigation was hopelessly incompetent and relied on pseudo-science that was bad even for 1976. The police just didn’t do what a basic police investigation would have or could have done. (To underscore that fact — and this is directed at “Kelly”[another TM commenter] — Ms. Edwards had indeed been married and divorced. I have the records and I’ve spoken to her ex-husband. At the time of the murder, he was in the military out on the east coast, and detectives made the trip out to interview him. In a bit of irony, the detectives couldn’t be bothered to head out to the university to interview Mr. Mayfield or Ms. Edwards’ co-workers. When those co-workers complained to the police about not being talked to, the detectives went out to the school and basically waited for people to come to them — in full view of Mr. Mayfield.)

As another example of the utter ineptitude of the police investigation, consider the “missing” sock. As those conversant with the case know, police said they found only one sock at the scene, and so the prosecution turned that “theft” into one of the elements making it a capital murder case and the description they offered at Mr. Cook’s trial was quite graphic: After killing Ms. Edwards, the killer allegedly cut out body parts and stuffed them in the sock and took them as “trophies” of his kill. Imagine if you’re a member of the jury and you hear that and it is never refuted by the defense. Well, no body parts were ever taken, and when the jurors in the first re-trial had the evidence back in the jury room, they opened the evidence bag containing Ms. Edwards’ jeans, pulled out out the pants and held them up. Out dropped the “missing” sock. The cops were too incompetent to even find a sock in a pant leg. That type of conduct permeates the police investigation, so it is legitimate to question how anyone can have any faith in it. Still, the “he-took-body-parts-in-a-sock” bit remains part of the accepted mythology surrounding this case.

I’ve covered many murder cases over the years and realize that often they come down to circumstantial evidence. But even the circumstantial evidence in this case had to be stretched and in some cases fabricated to win a conviction. And Mr. Cook’s initial defense team did little to nothing in the way of investigation, or at least the type of investigation you’d like to see in a capital murder case.

Over the years, I have developed my own theory and belief into who killed Ms. Edwards, and it is a theory that fits the available evidence (direct and circumstantial) and is not inconsistent with those factors. I’ll not share that theory here, but suffice to say that it doesn’t involve Mr. Cook. Not to put too fine a point on it — and this is something I’ve spoken to him about, so he knows what I’m about to say — but Mr. Cook was not a good enough criminal or a lucky enough criminal to have committed a crime of this fury and magnitude and NOT leave a ton of evidence. He was young, immature and just didn’t think that far ahead. As “iffy” as fingerprints can be, he could not have committed this crime and not left bloody fingerprints everywhere in that apartment.

I also wish to speak to the DNA evidence and the way the prosecution has handled it. I clearly remember Mr. Dobbs telling me, prior to the testing, that they were excited about the prospects of a test because the semen sample “could only have been left by the killer.” Those were his exact words to me and I remember him saying it as if it were yesterday. So then the sample is tested and, lo and behold, it belongs to someone other than Mr. Cook. Suddenly, the prosecution’s story changes. So now the prosecution says, “Well, of course it was somebody else. But Mr. Cook is still the killer.” That last point is emblematic of how the police and prosecution have behaved over the lifetime of this case. They have wanted to have it both ways. When they claimed the evidence said one thing, they claimed it pointed to Mr. Cook’s guilt, but when it was demonstrated or proven that the evidence said the exact opposite of what they claimed, they said it still proved Mr. Cook’s guilt.

Absent confessions from the guilty parties, I doubt we’ll ever know for sure what happened to Ms. Edwards. The investigation was so screwed up that it can’t be trusted and there’s no way to go back in time and fix that. You don’t get a do-over when it comes to collecting evidence from the scene of a 1976 crime. Mr. Cook deserves more than what the system has given him. For that matter, Ms. Edwards deserves more than what the system has given her. She, like Mr. Cook and justice itself, deserves the truth, and we do them all a disservice by perpetuating the lies that led to this abhorrent conviction.

Well-said; you can see how Mr. Hanners had the writing chops to win a Pulitzer. He and Michael Hall couldn't be more right about the Tyler Morning Telegraph, and this case isn't the only time the paper has demonstrated such shortcomings.

BTW, among attorneys doing innocence work, there's a phrase for the situation where prosecutors insist only the rapist and/or killer could have left the DNA, then change their theory of the case after exculpatory results come back vindicating the person they've accused, as happened in Mr. Cook's case: They're basically alleging there was an "unindicted co-ejaculator." Usually once you reach that point, the defense has already won the substantive debate and the prosecution just hasn't realized it yet, or won't admit it. But you'd expect the local newspaper to be able to figure it out.

TYC prescribed drug while Attorney General sued over its off-label use with children

Here's an ironic story from a Dallas TV station that speaks as much to the overmedication of youth in the juvenile justice system as to flaws in Medicaid billing. It opens:

The state won a $158 million settlement last month from a pharmaceutical company that the Texas attorney general said promoted an antipsychotic drug for uses not yet approved by federal regulators.

Attorney General Greg Abbott said Johnson & Johnson marketed Risperdal as the drug of choice for children and the elderly for schizophrenia and dementia even though the Food and Drug Administration had not approved its use in children or the elderly.

Yet while the state was suing J&J, the Texas Youth Commission, one of the state's largest purchasers of pharmaceuticals, prescribed it nearly 3,000 times to youth in the Texas prison system, according to financial documents uncovered by NBC 5.

The state's lawsuit, which was filed in 2006, said the state excessively paid pharmacies that dispensed prescriptions for Medicaid patients for a range of unapproved uses.

Lege committee told model eyewitness ID policy mostly well received

The House Criminal Jurisprudence Committee held a hearing this week on the implementation of its eyewitness identification legislation and invited just one witness: Rita Watkins from Sam Houston State University - whose team at the Law Enforcement Management Institute of Texas drafted the model policy mandated under HB 215, a bill authored by the outgoing chairman of the committee, Pete Gallego, who is leaving the Lege after 22 years to run for Congress.

Surprisingly, there was really only one question (with a few variants) posed to Watkins: They wanted her to respond to the letter from McAllen police chief Victor Rodriguez, discussed in this Grits post. Watkins told me later the committee hadn't communicated to her to prepare for that line of questioning, but she answered well, perhaps in part because LEMIT had already prepared a extensive FAQ (pdf) responding to the Chief's unfortunately ill-informed concerns. Plus, she's been through a long process which included convening a "working group" prior to writing the model policy that included both Chief Rodriguez and your correspondent (in my role at my day job working for the Innocence Project of Texas). Then they held a public hearing at the capitol before finalizing it. At this point, Rita and her staff have been all the way around the block on this subject, and from my observation she's handled her critics - myself included, at some points in the process - with admirable aplomb.

Bottom line: The Chief wishes the bill had not passed and does not understand it, falsely believing (or at least portraying) that his department is required by law to adopt the "model policy." They're not. It's just a recommendation. If he doesn't like it, he can adopt something else. LEMIT did what the Legislature told them to do: Write a "detailed written policy" with specific "procedures" for a number of different aspects of eyewitness identifications based on scientific research and established best practices. The committee seemed satisfied with Watkins' answers and didn't appear to give much credence to the McAllen chief's oddball letter once she explained his various misconceptions.

Anyway, it sounds like there's not a major groundswell out there among law enforcement in opposition to the model policy, at least so far. Watkins said she'd been surprised to receive just eight phone calls from police chiefs about the model policy after it was published. Five of them were congratulatory, she said, and the other three were from Chief Rodriguez. Though LEMIT dubbed its response to Rodriguez an "FAQ," apparently as a practical matter those weren't questions being asked all that frequently.

Criminal court fees skyrocketing as funds are diverted to non-court uses

When defendants pays a "DNA collection fee" as part of their court costs, one may not like it but at least one might suppose it goes to pay for DNA collection. Not necessarily, reports Eric Dexheimer at the Austin Statesman ("Hard up defendants pay as state siphons court fees for other uses," March 4) in an excellent extended story on the unhappy combination of excessive court costs for indigent defendants and the Legislature's penchant of raiding those funds for pet projects:

Over the years, legislators have used tens of millions of dollars collected from criminals to fund a slew of projects, many with only the faintest connection to the courts. Texas judicial administrators estimate that 1 in every 3 dollars raised through such state fees is spent on projects outside the court system — a practice critics say amounts to an undeclared tax on the state's poor that might violate the law. Cities and counties whose courts raise much of the state money, meanwhile, complain that their courts are drastically underfunded.

Today, court costs pay for the rehabilitation of patients with head injuries. They fund research on obesity among minority children in Houston and cover the salaries of game wardens. They support three academic centers at state universities and after-school programs for kids. And they were used to pay a private company $2 million to install cameras along the Mexico border so citizen "virtual deputies" could watch online and report illegal crossings.

Last year, elected officials raided a $20 million pot collected from criminal defendants to pay for state employee pensions.

Thanks to such maneuvering, in Texas courts, a "DNA collection fee" does not necessarily pay for DNA tests, a "breath alcohol testing fee" does not always cover breath alcohol tests, and people judged guilty of victimless crimes contribute millions of dollars every year to "victims compensation."

"We have a ‘school crossing fee' that nobody — nobody — can tell me what comes of it," said state Sen. John Whitmire, chairman of the Senate Jurisprudence Committee.

In the anti-tax, pro-spending atmosphere of the 21st century Texas Legislature, this practice has become essentially rampant, and from Dexheimer's reporting appears to have reached a tipping point: "the steadily accumulating costs, charges and fees have meant that the money the state collects from defendants has ballooned nearly 50 percent in the past five years." With inflation in the low single digits and unemployment high, that's a harsh combination.

Saturday morning reading material

Here are a few odds and ends that didn't make it into full blog posts in the last few days:

• Melissa del Bosque at the Texas Observer visits "the deadliest place in Mexico" outside of Juarez and it sounds like the aftermath of Sherman's march.
• The Burnet County Sheriff wants to reclaim managerial control of the county jail, currently operated by LaSalle Corrections, in the wake of a recent escape.
• See an interview with often-media shy (at least with the locals) Dallas DA Craig Watkins.
• Dallas PD wants to add 300 surveillance cameras, both public and "covert," in 27 parts of town.
• In Abilene, a young man was sentenced to complete college as a condition of probation. 
• The Denton Record Chronicle has an article discussing how jails came to replace asylums as the government's method of choice for dealing with the mentally ill, and where to go from here.
• Leaving aside hypertechnical arguments over its legality which have not been affirmed by any court, Big Jolly says Harris County's DIVERT program works more or less as advertised to reduce the number of defendants choosing incarceration over treatment and probation.
• In a plea deal in El Paso, Barrio Azteca prison gang members "admitted that they participated in the collection of extortion fees from drug dealers operating on BA turf, and that this money was sent to jailed BA leaders" via their prison commissary accounts.
• Can the police spy on us?
• Prison evangelist Pat Nolan says mandatory minimums are "unjust and unbiblical."

Police, defendants, social media and internet privacy

The Dallas News had an interesting item this week behind the paywall about police officers getting into trouble for outing misconduct or criticizing one another via social media and online message boards. The story opened:

The online message board postings read, at times, like a typical teenager attacking a classmate.

“She has an attitude problem and is all mouth,” wrote “Eskimo88” in one December post.

“SHES AN IDIOT,” he wrote in another, referring to the same person in a post the next day as “bat [expletive] crazy.”

But the posts weren’t made by an angry adolescent. They were published on a members-only local law enforcement message board, undergroundcop.com, by Dallas police Public Integrity Detective Jeff Baum, according to public records. He made the postings in reference to a since-fired officer whom Baum’s unit investigated for criminal misconduct.

The revelation that Baum is “Eskimo88” could threaten the credibility of pending criminal cases against former Sgt. Stormy Magiera, who is accused among other things of lying about a December Dallas robbery in which police believe she was trying to buy prescription drugs. And the case highlights a culture among some officers of gossip, rumor-mongering and personal attacks that can have career-threatening consequences in the Internet era.

“We are seeing people lose their careers over a posting on Facebook, whether it was about a crime that they went to or about another officer or about a citizen,” said Harvey Hedden, executive director of the International Law Enforcement and Trainers Association.

It's been quite the trend in recent years for police to mine social media for information about defendants, but I haven't seen it used as often to allege police misconduct. That said, allowing such unfettered, anonymous carping by employees in a criminal justice setting can become corrosive and harmful. I know Grits shut down some TYC/juvenile justice strings because of exactly that type of unproductive, personal sniping against non-public figures, and it's unsurprising, if disappointing, that the online culture in some police departments isn't much better.

Perhaps relatedly, the blog Liberty and Justice for Y'all has a post on a unanimous Court of Criminal Appeals ruling which confusingly seemed to adopt a three-pronged standard from a Maryland case for authenticating that online postings actually came from a specific individual and not just someone using their computer or posing as them. However, wrote B.W. Barnett, "While the State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury." So the court invokes a standard, then fails to follow it, but allows the evidence in anyway, declaring those methods are not exclusive. That, my friends, is outcome-based jurisprudence: Pick the outcome you want then pull a reason out of thin air to justify it.

In any event, the Tienda case will make it easier to establish the identities of police officers on sites like undergroundcop.com just like it makes it easier to prosecute workaday criminal defendants. In an odd sense, the police commenter Eskimo88 and the defendant in Tienda had somewhat aligned legal interests, at least as far as favoring a precedent that maximally protects internet privacy, forcing the state to prove authorship definitively as opposed to circumstantially.

What you say online, even anonymously, is increasingly likely to get you in trouble on the job or even with the justice system. I don't know that we've yet reached "the end of anonymity," but Internet privacy - for cops and citizens alike - certainly hangs by a tenuous thread.

'Inmate challenges pedophilia test as junk science'

The Austin Statesman's Chuck Lindell reports ("Inmate challenges pedophilia test as junk science," March 2) on a legal challenge by TDCJ inmate Michael Arena - who was convicted of sexually assaulting two young cousins when he was a teenager - to use of a particularly insidious brand of junk science aimed at sex offenders called the Abel Assessment, which is based on similar principles to the penile plethysmograph. (Try saying that three times fast.) Neither forensic technique is allowed to be used at trial under modern evidence standards - and probably shouldn't have been in this case - but the plethysmograph is still used rather frequently in post-conviction settings in Texas, particularly among parolees who're assigned sex-offender conditions. The Abel Assessment suffers from an error rate of 35-48%, according to various estimates in Lindell's article. One study found "a 42 percent false-positive rate when non-molesters were tested."

In Arena's case, his claims about the test's inaccuracy are bolstered by the recantation of both alleged victims, who say they were encouraged to lie by their mother who was going through a bitter divorce. Writes Lindell:

Though interest in Arena's case tends to focus on his claim of innocence, his attack on the psychological test could influence future attempts to challenge allegedly bad science in the courtroom — a continuing problem that the nation's appellate courts have struggled with for decades.

The test, defense lawyers say, had an unacceptably high 35 percent error rate that was not disclosed to Arena's judge and jury. It was never intended to be used to identify pedophiles, they claim, and a university study found that its results were little better "than chance" when trying to distinguish pedophiles from non-pedophiles.

In addition, the psychologist who examined Arena inflated the test's effectiveness and scientific support when he testified at Arena's trial, leading to a reprimand from a state regulatory agency four years later, court records show.

Issues with the test seemed to resonate with many of the Supreme Court's nine justices during oral arguments in January.

Justice Nathan Hecht dismissed the test as "bordering on hokum" and less likely to yield valid results than lie-detector tests, which are not admissible in criminal court proceedings.

Justice David Medina noted that a 65 percent accuracy rate would have earned the test an F in a school setting. "To incarcerate somebody for one day, you use a standard that's not even A-plus?" Medina asked lawyers for Bell County. "That seems wrong on its face."

Lawyer John Gauntt Jr. with the Bell County attorney's office acknowledged that a 35 percent error rate was "not a suitable standard" for use in court. He also acknowledged that the prosecution's expert, Georgetown psychologist Fred Willoughby, provided false testimony about the test's effectiveness in the Arena case.

Even so, Gauntt told the court, the 20-year sentence should not be overturned because Arena cannot prove he was harmed by Willoughby's testimony — a necessary step toward earning a new sentencing trial.

Lindell includes an interview with Michael Arena, speaking from a Texas prison:


Notably, this case is being heard by the Texas Supreme Court instead of the Court of Criminal Appeals because Arena was convicted as a juvenile. That's important because civil courts generally have much more rigorous standards for scientific evidence, in part because both sides in civil litigation have money to routinely hire experts. By contrast, in most criminal cases the prosecution has most if not all of the access to lab resources and forensic expertise unless the defendant pays for it or a judge orders it. These are judges who're used to seeing science in the courtroom held to much higher standards than their counterparts on the Court of Criminal Appeals, and Lindell's account of oral arguments in Arena's case shows the Abel Assessment is getting a more skeptical reception from the Texas Supreme Court than junk science sometimes receives from Judge Keller and Co. on the other side of the building.

Austin PD crime lab up for forensic commission review of drylabbing allegations

In Dallas today, a committee of the Forensic Science Commission will be vetting details of misconduct allegations at the Austin PD crime lab, specifically that they issued preliminary reports without performing any tests, a practice known as drylabbing, and produced results that contradicted findings of a private lab in at least three cases. In a complaint to the commission, a private, Dallas-area lab director wrote to the commission that, "we have worked several cases behind Austin PD's controlled substance lab and found problems so large, I feel I am ethically bound to bring them to your attention," reported the Austin Statesman in a story previewing the meeting.

Wish I could be there for it. (See the agenda.) Presumably, the FSC will discuss the case again at its April 13 meeting in Austin.

Related:

• Former Austin crime lab scientist says reports issued without testing
• More allegations at the APD crime lab
• Forensic commission reviewing Austin, El Paso crime labs

Kerry Max Cook seeks DNA testing, formal exoneration

Though I was 12 years old when Kerry Max Cook was convicted of capital murder for the first time in my home town of Tyler, I have no recollection of the original events or trial. As an adult working in the innocence movement these last few years, however, I know his case as almost iconic, tainted by flawed forensics, tunnel vision and extreme prosecutorial misconduct. After his third trial and death penalty sentence, the Court of Criminal Appeals overturned his conviction declaring that, "“Prosecutorial and police misconduct has tainted this entire matter from the outset.”

Now, more than a decade after his release from Texas death row, Cook has filed a Chapter 64 postconviction DNA testing motion "to start the ball rolling to get Cook eventually declared actually innocent," reports Michael Hall of Texas Monthly who provides an excellent, extended analysis of the case in a TM blog post.

Bizarrely, prosecutors from my home town say they're puzzled why Cook would seek formal exoneration so many years after he was sprung from death row. Just for starters, I'd say it's because Jack Skeen and David Dobbs smeared him six ways from Sunday over the course of two decades while ignoring the man who DNA evidence and an investigation by the indefatigable Centurion Ministries say is likely the real killer. More immediately, Texas recently increased compensation for men exactly in Cook's position who were victimized by false convictions. And during the 2011 session, the Texas Legislature amended the post-conviction DNA testing statute to eliminate most grounds for prosecutors to object to testing. So it makes perfect sense to me why this is happening now. Indeed, if the Tyler Telegraph or Smith County prosecutors wonder why Cook is seeking exoneration, they could have just asked him. Hall did, and his post concludes with Cook's reasoning:

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

This case represents one of the darkest moments in the history of my hometown's criminal justice system, though the saddest part is that, as bad as Cook's case was, there's still substantial competition for that "darkest" label. I know Cook sometimes visits this blog, so let me be the first here to say "good luck"; if anybody deserves ultimate vindication after traumas worthy of Job, it's Kerry Max Cook.

MORE: From Michael Hall at TM Daily Post, see "What the Tyler Morning Telegraph failed to tell you about Kerry Max Cook." Though lets face it, it would be more than a full-time job trying to plug in all the gaps that the Telegraph "failed to tell" its readers, though I understand wanting to make an exception in this instance.

Most larger Texas police departments wrote fewer traffic tickets in 2011

I think we're unraveling a trend here. After the Dallas News reported the surprising news that the number of traffic tickets issued by Dallas PD has dramatically declined, Grits found that tickets statewide have declined as well, or at least those processed in municipal courts. So Charles Kuffner at Off the Kuff looked at Houston's data and found HPD issued 200,000+ fewer tickets in FY 2011 than in 2010, more than a 20% one-year decline. This inspired Grits to compile the number of tickets issued over the last two fiscal years in some of the largest Texas cities and remarkably, the number of new traffic cases in municipal court are dropping nearly across the board:


I'd asked before what might be causing this and now I'm even more curious. These are remarkable numbers considering Texas' population has continued to grow and Texas cities have big budget incentives to write more tickets, not less. And why is San Antonio an outlier? I find the whole situation surprising and puzzling.

Check out your town's numbers if they're not on the list above. See here for FY 2010 data by city, here for FY 2011.

Police informant use contributes to tolerating crimes, solving them, and testing community loyalties

Via Alexandra Natapoff's Snitching blog, I ran across several items on the subject of confidential informants (aka, "snitches") that may interest Grits readers.

First, out of Boston, a TV news reporter raises a question that could be asked anywhere in the country: Whether confidential informants are gaming the system, "continuing to commit crimes while exerting too much control over government investigations." "'There is almost no crime that a criminal informant cannot work their way out of,' Natapoff told FOX Undercover. 'Terrorism. Drug dealing. Murder. Child pornography. Nothing is off-limits. And because of that we send a terrible message in our criminal justice system that every crime is negotiable.'"

On the flip side of that critique, Natapoff points to a story from the San Antonio Express News that I'd missed back in January detailing court testimony from a long-time DEA informant who worked infiltrating the Zetas organized crime gang on both sides of the river, including in Laredo and Nuevo Laredo. Natapoff notes the account is "unusual in part because of the generally secretive nature of informant use, but also more concretely because trials are infrequent and therefore informants rarely testify. On the extent to which informant/cartel members have become central to U.S. law enforcement in Mexico, see this previous post: NYT: Numerous Mexican drug informants benefit U.S. law enforcement."

Finally, Natapoff points to a law review article which aims to articulate "a different understanding" of the Stop Snitching phenomenon, "arguing that poor, black community members' refusal to cooperate with police investigations should be viewed as neither ethically condemnable nor inexplicable, but rather as a natural extension of the innate human aspiration to be loyal. It does so by situating Stop Snitching within the existing literature on loyalty and asserting that the refusal to cooperate with police represents a privileging of community loyalty over loyalty to the state. Throughout the various strata of contemporary society, such privileging of the familiar over the remote is common, and Stop Snitching is neither puzzling nor reprehensible when viewed as a manifestation of this manner of prioritization." (Grits has explored some of these same themes in the past.)

Fascinating stuff. Grits hasn't focused as much in recent years on the subject of informants, but I continue to believe, with Natapoff, that it's a lynchpin issue around which a lot of problematic police practices revolve. Informants are critical for law enforcement - particularly when investigating targets like insular Mexican drug cartels - yet at the same time they represent one of law enforcement's greatest points of vulnerability for corruption and abuse of power. If you haven't read Natapoff's book on snitching and have any interest in the subject, professional or otherwise, I couldn't recommend it and her work more highly.

'The Harris County Jail: The Largest Mental Health Provider in Texas'

Via press release, Harris County Sheriff Adrian Garcia tomorrow morning will address a subject I think few Texans are aware of: That the Harris County Jail is "The Largest Mental Health Provider in Texas." Media are invited to the event.

The legacy of Otis Campbell and Houston's proposed 'sobering center'

Following up on a suggestion from Harris County District Attorney Pat Lykos, Houston officials plan to create a "sobering center," reports the Houston Chronicle's Chris Moran ("Houston plans 'sobering center' at shelter instead of jail," Feb. 29), where police can take drunks instead of booking them into jail. The story opens:

City officials plan to open a "sobering center" at the Star of Hope Mission downtown later this year. It would be an 84-bed facility that would allow people whose only offense is being drunk to bypass jail.

Houston police arrest 19,000 people a year for public intoxication, racking up $4 million to $6 million in jail costs. A sobering center aims to divert drunks from jail and free up cells for more dangerous offenders. Dropping off a person at the center, instead of booking him into jail, also would let officers to return to patrol more quickly.

A person brought to the sobering center would have to stay at least four hours, until he sobers up, and would not have an arrest put on his record.

"Jail should be for violent people that we need to get off the street," not a place to merely sober up, said Councilman Ed Gonzalez, a former city police officer who has championed the sobering center idea.

The center also may do a better job than jail at addressing chronic substance abusers, Gonzalez said.

"I don't think jail is a deterrent" to chronic abuse, he said. "They consume or abuse because they have abuse issues. Punishment isn't a substantial stick anymore."

In a statement, Mayor Annise Parker declared that "Incarcerating individuals whose only criminal behavior is public intoxication diverts law enforcement from more serious or life-threatening crimes," adding that "Sobering centers in other cities have proven to be time savers for patrol officers, allowing them to quickly return to their assigned duties to deal with more serious crimes."

When Lykos first suggested the idea, Grits quipped that "In my mind's eye, I think they should call it the Otis Campbell Detox Center," comparing the tactic to "giving Mayberry's town drunk a safe place to dry out."

Every effort to divert low-level cases from the justice system is a worthy experiment, in this writer's view, but it remains to be seen how well the idea works in practice, whether HPD uses it, not to mention what criteria will be used to decide that the "sobering center" is more appropriate than the jail. For homeless frequent flyers in particular I can see it becoming a tremendous boon. And it's good to see city leaders spending on diversion programs first instead of automatically sinking more money into the city jail. According to Moran, "The city stands to save millions a year if it can offload a substantial portion of its public drunkenness cases to a facility where the detainees do not have to be fed nor as closely monitored as they would be in jail."

Kuff points to a press release on the topic, adding that "The city jails, and ways to reduce costs on them, were a subject of the Mayor’s inaugural speech." More from Hair Balls.

Plea deals without open files turn off ignition on adversarial system's truth-seeking engine

An exchange between judge and defendant during a guilty plea out of Williamson County in a remarkable, 33-year old murder case caught Grits' attention.

Benny Tijerina was sentenced to concurrent 40 year sentences in Williamson and McLennan counties for the crimes, though he claims and a victim's mother agrees that another man was the shooter (the prosecutor claimed to have jailhouse informants who say otherwise). Anyway, as cold cases solved by DNA go, this was at once both a remarkable and increasingly a routine event.

What caught Grits' eye was an exchange recorded at the end of the Austin Statesman story: "After he was sentenced, Tijerina asked [Judge] Carnes why he hadn't been allowed to see any of the evidence against him in the case. Carnes said that was standard and that Tijerina would only have seen the evidence if the case had gone to trial."

That's true as far as it goes under the US Supreme Court's Brady v. Maryland ruling, but it's also a "standard" that shifts in Texas county by county at the whim of the local elected prosecutor. In Tarrant County, for example, defense attorneys have access to prosecutor files - electronically, no less - even in cases that result in plea agreements. In El Paso, too, DA Jaime Esparza told a conference at the Task Force on Indigent Defense that his office allows defense counsel to get access to case files within 24 hours, noting that it facilitated more routine cases getting disposed of within three days or less, reduced jail costs, overcrowding and liability, relieved court dockets, and even freed up space in the jail that's now leased out to house federal inmates and make extra money.

We live under a justice system where 98% of cases result in plea bargains instead of trials. Under the Williamson County rule, in the overwhelming majority of cases nobody outside the prosecutor's office ever actually vets the evidence before a sentence is dispensed. If the adversarial system is a truth seeking engine, in 98% of felony cases the engine's ignition switch remains locked in the "off" position under that "standard."

According to the Texas Office of Court Administration's annual report (pdf), "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010" in district (felony) courts. Just 3,633 felony cases in FY 2010 went to either jury or bench trials, says OCA. So in the overwhelming majority of cases, under the Williamson County system, the defense never sees the evidence.

I have no knowledge of the case beyond this report from the Statesman and don't argue with the sentence(s), but that exchange between defendant and judge about what is "standard" in Williamson County - and too many other Texas courtrooms - should raise alarm. The same sort of prosecutorial gamesmanship takes place in more routine cases all the way down to the misdemeanor level. Make Grits philosopher-king and I'd prefer that, as in El Paso and Tarrant, both sides had full access to the police investigation as early in the process as possible. Clearly some DAs - like Williamson's John Bradley - just won't do that unless they're required, so in the interests of justice the Legislature should make them.

Will Cowtown cell-phone trackers be used based on probable cause, or to obtain it?

The Fort Worth PD insists it was a misstatement, but an internal memo on its new Kingfish cell-phone tracking system said the device could be used for "developing probable cause." Previously the department had said they would only use the device after obtaining a search warrant, which would require obtaining probable cause before using it. Reported a local TV station:

A city memo describing the system's use sounds to some like police will track people's cellphones without first getting a warrant.

"The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders," the memo said.

The "developing probable cause" phrasing caught the attention of the American Civil Liberties Union. Police need to obtain a search warrant first, the organization said.

"Having a neutral party like a judge review and sign a warrant is the safeguard for individual privacy rights that prevents the police from simply using whatever tools are at their disposal to peek at, observe, watch or invade the privacy of folks at will," said Lisa Graybill, ACLU legal director.

But Fort Worth police say the description was misleading. The department always intended to obtain a search warrant before tracking someone, police said.

The department also said that if an arrest came from tracking someone, the district attorney, defense attorneys and a judge would all review the case.

If it was just a misstatement and they really do plan to get warrants, fine. If police intend to use the devices BEFORE they have probable cause, that's a problem. At a minimum they need some written policies on the subject. This was a consent-agenda item which wasn't discussed at all when the City Council approved it, and it sounds like the department's plans for the device and safeguards against abuse aren't as well-developed as they should be.

Why are Texas cops writing fewer traffic tickets?

A story by Scott Goldstein at the Dallas Morning News ("Dallas police tickets fall by tens of thousands," Feb. 28, behind paywall) opened:

Dallas police issued almost 59,000 fewer tickets last fiscal year than in the previous year, continuing a dramatic decline that could equate to millions of dollars less in city revenue, according to public records.

Police officials in Dallas, as in other cities reporting similar declines, offer several possible explanations for the decline in citations, most of which are generated by traffic stops.

They also emphasize that the number of traffic stops has gone up by tens of thousands, even as the number of tickets has dropped.

“We’re more interested in traffic stops, not necessarily citations,” Dallas Police Assistant Chief Tom Lawrence said. “The issuing of citations to a driver has always been the discretion of the officer, and we continue to be that way. We’re not going to change that.”

Tickets issued dropped by 67,000 in fiscal 2007-08, an additional 43,000 the next year and 18,000 in 2009-10. The total in fiscal 2006-07 was about 479,500, compared with 292,683 last year.

Lawrence said more than half of last year’s decrease is attributable to a 30 percent cut to a grant that financed officer overtime to work traffic enforcement exclusively in specified areas.

Police officials said that the federal grant is funneled through the state and that they did not know why it was cut.

Officers have other possible reasons for the decline in tickets.

Some officers say they are reluctant to write as many because they aren’t getting overtime pay for court appearances and because the citations they do write have gotten increased scrutiny from supervisors after ticket-writing scandals in recent years.

In addition, traffic unit personnel have been assigned recently to crime-fighting initiatives rather than strict traffic enforcement duties.

The decline comes as the city has seen an unprecedented eight straight years of overall crime reduction. For most of that time, the size of the force was steadily rising, thanks to a hiring push.

What's remarkable is not just this year's drop but the overall 39% decline since '06-'07. Wondering if the same trend is occurring statewide, Grits pulled the total number of new, non-parking traffic cases filed in municipal courts in recent years from the Office of Court Administration's annual reports. I was surprised to find that FY 2011 numbers reported represented a remarkable drop of more than 600,000 traffic tickets per year, more than 10%, compared to FY 2008:

Total new non-parking traffic cases filed statewide in Texas municipal courts:

2006: 5,711,966
2007: 5,581,607
2008: 5,749,780
2009: 5,684,813
2010: 5,521,029
2011: 5,148,510

Some police departments - notably Austin's - view traffic stops as their primary anti-crime strategy, particularly in so-called "hotspots," so I was surprised to notice that trend. It has budget implications, certainly, but more importantly, what is causing it? Are police deployment patterns changing, and if so, how and why? Perhaps the price of gas and a depressed economy are just making people drive less, which could make the trend meaningless if the economy picks back up. Perhaps Dallas' remarkable drop explains a disproportionate share of the total. OTOH, perhaps other cities, like Big D, are scaling back traffic enforcement in tight budget times because of limited resources. Or maybe there's something bigger going on, just as we've witnessed a steady drop in index crime rates over the last two decades.

Why are Texas cops writing fewer traffic tickets? What do you think is going on?