The case for punishing prosecutor misconduct

At Texas Monthly, Pam Colloff yesterday made "the case for punishing prosecutors who abuse their power," focusing on the Hannah Overton, Michael Morton and Anthony Graves cases. She also highlighted a case that's gotten less attention:

Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.

Colloff suggested the State Bar of Texas must "radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist."

She also recommended that, "the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar."

Poll: Harris DA's race in a 'dead heat'

A new poll from KHOU-TV in Houston shows the Harris County DA's race is a "dead heat" between incumbent and Rick Perry-appointee Devon Anderson and Democratic challenger Kim Ogg, with an enormous swath of the electorate undecided (46%).

That doesn't surprise me. The incumbent replaced her husband who'd already been diagnosed with terminal cancer before he took office, so the public barely knew him, nor her, despite her having been on the ballot before as a judge (a very different sort of election). That means both candidates remain relatively unknown to the voters, who will judge mainly based on party label. Indeed, many undecideds in that poll may never decide at all but will merely vote a straight ticket, R or D, perhaps not even knowing the DA candidates' names.

So the main tasks for both candidates are to drive turnout among the base and wooing the vanishing number of independents and ticket splitters out there who pay attention to candidates beyond their party labels. Those twin goals explain every one of the candidates' positions, which have been refreshingly populist and reform-minded on both sides. This is an example why I prefer it when candidates must run in competitive general elections. It enforces pragmatism and interest-based centrism that's notably absent in both parties' primaries and leaves the victors more prepared to govern.

MORE: See a decent backgrounder on the two candidates.

Backlash brewing against video-only jail visitation

In Austin, activists are pushing for the Sheriff to allow face-to-face visitation for county jail inmates, a practice ended as part of a new contract with Dallas-based Securus Technologies which provides for video-based visitation only. (See prior Grits coverage.) As a backdrop, the Texas Observer's Forrest Wilder reported recently (Oct. 16) on controversies surrounding Securus and video-only jail visitation. That article concluded:

In Dallas, activists and some local leaders, especially County Judge Clay Jenkins, helped kill a contract with Securus that included a provision stipulating that the jail had to eliminate all in-person visits. “It is very important that we do not profit on the backs of inmates in the jail,” Dallas County Commissioner Elba Garcia said in The Dallas Morning News.

The Bastrop County Jail is set to eliminate all face-to-face visitation in early November. Instead, visitors can use a free video terminal at the jail or pay $1 per minute to use the remote video system.

The contract, reviewed by the Observer, cuts the county in for 20 percent of Securus’ revenues. It doesn’t require, like the Dallas contract, that in-person visitation be eliminated, but it stipulates that for the first two years the county only gets paid if it produces 534 paid visits per month.

In Austin, the Travis County Commissioners Court voted in October 2012 to add video visitation as an ancillary service—something prisoners’ rights advocates are fine with as long as the rates are reasonable and the service is reliable. But in May 2013, Travis County Sheriff Greg Hamilton quietly eliminated in-person visitation. Defense attorneys and inmates sued in April, claiming that the jail and Securus were unlawfully recording privileged conversations between inmates and attorneys and leaking them to prosecutors. On top of that, [Grassroots Leadership's Kymberlie] Quong Charles says the lack of human interaction is worsening conditions.

“What we found is that everything they said would happen in terms of improving conditions has actually gotten worse,” she said. “I think people are frustrated, they’re not getting to see anybody.”

A report released this morning by Grassroots Leadership and the Texas Criminal Justice Coalition found that disciplinary infractions, assaults and contraband cases all increased within the year after the video-only policy was put in place. The report concedes that the trends may be an aberration or temporary but cites social science and long-standing prison policies holding that visitations improves jail security and lowers recidivism rates. One study of 16,420 offenders commissioned by the Minnesota Department of Corrections, for example, found that “prison visitation can significantly improve the transition offenders make from the institution to the community.” Even one visit lowered the risk that a person would re-offend by 13 percent.

“Video-only visitation policies ignore best practices that call for face-to-face visits to foster family relationships,” the report argues. “They advance arguments about security that are dubious, not rooted in research, and may be counter-productive.”

Grassroots Leadership and the Texas Criminal Justice Coalition report found 10 counties in Texas that have already deployed video-only systems, with more considering the option.

Are MEs fudging cause of death for Texas prisoners?

If one person per day is dying in custody of state and local law enforcement in Texas, the next obvious question is, "What do those cases look like?"

Nicole Brambila at the Lubbock Avalanche-Journal over the weekend (Oct. 18) offered up a portrait of local death in custody cases, basing the story on the list compiled at the Attorney General referenced in this recent Grits post. Well done. This same type story can and should be localized by media in other jurisdictions around the state.

The most dramatic element in the article was the saga of Benjamin McCoin, whose death at the Montford psychiatric unit occurred due to injuries sustained while being restrained by guards. The Tarrant medical examiner called the death an accident; the Lubbock medical examiner labeled it a "homicide." TDCJ spokesflak Jason Clark understatedly told the paper, “It’s certainly a unique situation where you have differing causes of death between two medical examiners.” Indeed, isn't it?

Lubbock County Medical Examiner Sridhar Natarajan has reviewed four death cases from Montford in the past year. "In two of the cases the state said were natural deaths — including McCoin’s — Natarajan has changed the cause, out of concern," reported Brambila. Here are more details on the other case:

The second involved 27-year-old Marsele Dauntri Thompson, who in January was found unresponsive in his cell. Tasha Z. Greenberg, M.D., in Tarrant County reported finding “no evidence of trauma or foul play.”

And yet, the autopsy records evidence of a contusion on Thompson’s forehead in the process of healing, as well as abrasions around his eyes and and additional contusions on his arm and thigh.

Correctional officers were supposed to be conducting 15-minute checks on Thompson, a schizophrenic on water restriction for his personal safety. However, when officers discovered

Thompson sitting nude in his cell with his legs crossed, his body was cold.

Generally, a body is stiff and warm at two hours. It’s stiff and cool between four and six hours.

“When the body was found it was cold, in rigor,” Nataranjan said. “That’s not going to happen within a 15-minute check. It doesn’t match with 15-minute checks.”

Natarajan reported the death undetermined.

“If I’m not able to explain it, I’m not going to give a cause of death,” Nataranjan said.

The Texas Office of Inspector General is also investigating Thompson’s death, Clark said.

Excellent reporting. Nice to see local journalists following up on those death-in-custody reports. There's no way such stories get reported unless somebody's doing the grunt-work to follow up on the details of individual cases in the AG report.

These sorts of regional and local stories are low hanging fruit for reporters elsewhere, it should be emphasized. That AG death-in-custody list represents a huge cache of under-utilized story leads that typically aren't followed by local reporters because they require work and the government hasn't handed them the story on a platter. This article shows what's possible with just a little elbow grease. You never know what you'll find until you look. One hopes others follow suit.

Backstory on Pam Freeman indictment, ouster of parole board member who tried to hold her accountable

Parole attorney Kevin Stouwie offered up a detailed explication of "The Pamela Freeman debacle as I understand it" from the perspective of the person whose complaint sparked the investigation that led to her indictment earlier this month. (I'd have seen this sooner if I read Grits comments more faithfully; it's a little more than a week old.) The item is particularly notable as the only new detail we've received on the topic since the single round of MSM attention Oct. 3.

Stouwie had this to say about recent parole board appointee Roman Chavez's recent ouster, which has yet to be covered in the MSM:

There is presently a vacancy in one Board Member slot; the slot recently vacated by the Board Member in Huntsville, Roman Chavez.  Board Member Chavez  was constructively discharged (my interpretation) by Board Chair Rissie Owens the day before the indictment of Pamela Freeman.  The official version is that Ms. Owens merely made a decision to transfer Mr. Chavez to the Austin Board Office.  Another way to view the situation is that Ms. Owens knew Mr. Chavez would not uproot his family and move to Austin.  Although this management decision by Ms. Owens is certainly worth further scrutiny, it must be clarified that Mr. Chavez is NOT, and has never been suspected of doing the things for which Ms. Freeman is indicted, and neither is Ms. Owens for that matter.

In fact, Mr. Chavez seems to have done whatever he could to try to hold Ms. Freeman accountable once he concluded that Ms. Freeman had engaged in unethical and illegal acts while she was supposed to be carrying out her job responsibilities on April 30.

According to Stouwie, Chavez was one of the people to whom Freeman allegedly lied about five inmates' reasons for missing their 20-year parole interviews and in fact reported Freeman's alleged misconduct himself. After Stouwie brought his allegations to Sen. John Whitmire and the Office of Inspector General, he wrote, "I also later learned that Mr. Chavez had, at some point, brought the Freeman debacle to the attention of OIG officials.  I do not know when, or how Mr. Chavez classified the Pamela Freeman actions of April 30, but I assume he will be one of the witnesses called by the attorneys at trial, in the event she is crazy enough to take her case to trial."

Following a detailed account of the episode that spawned Freeman's indictment, Stouwie concluded with this tidbit: "It’s my understanding that Ms. Freeman was finally suspended after she was indicted. However, she is still collecting a paycheck.  Lord only knows how that is possible, especially given a pile of other complaints that were made by many different people in recent years. One thing that deeply troubles me is that Ms. Freeman may have falsely claimed that other inmates refused to be interviewed on other occasions."

Go read the whole thing. Stouwie's post substantially fills out the picture compared to the indictment and initial MSM coverage, after which this story inexplicably seems to have fallen off the map.

Why Houston won't get the private prison museum it deserves

Okay, they almost got me. I couldn't tell for sure just from reading it if this Free Press Houston story was satire. Editors confirmed that it is. Lucky I checked before writing something, a reliable reader sent it to Grits thinking it was legit.

The last few paragraphs seemed too out there to be true, but somehow the world seemed just possibly weird enough to contemplate the viability of the story of a plain speaking, fascist School-of-the-Americas reject deported from America's first private prison facility in Houston in the 1980s who becomes inspired by Corrections Corporation of America, launches a chain of private detention facilities serving death squads and torturers in El Salvador, then returns to America to buy the converted motel where he was earlier imprisoned and turn it into a private prison museum that lionizes T. Don Hutto.

What makes it fine satire is that it could be true: The world is just nuts enough to allow for it. Alas, not this time. Good stuff, though. Read it.

Waste in the justice system? Say it ain't so!

Do you have stories of government waste?

Texas Public Policy Action, a 501c(4), is collecting stories of government waste through next Friday Oct. 24, with the top suggestion receiving $4,000. All suggestions will be compiled into an anthologized publication on waste that will be delivered to legislators offices next session. See Big Jolly's blog for more detail.

Offhand, at the municipal level I think of wasteful spending on police officers covering false residential burglar alarms, which account for 10-12 percent of patrol calls in most Texas departments.

At the state level, offhand, there's over-incarceration of nonviolent drug and property offenders and elderly offenders from decades ago who can't make parole and cost the state a small fortune in medical bills. (The advent of life without parole will exacerbate that trend in the future, though for the most part people who committed violent offenses aren't getting paroled now.)

The Driver Responsibility surcharge generates revenue for hospitals but at the expense of county courts, jails, local police, and especially drivers who must pay the externalities from this ill-conceived project.

Use the comment section to suggest areas of waste in the criminal justice system, and see the full contest rules if you're interested in entering.

Dallas News urges Dems to split tickets in DA's race

Ouch! The Dallas Morning News endorsed Republican Susan Hawk for District Attorney over incumbent Craig Watkins in an editorial which concluded:

Watkins, 46, relied even more on straight-ticket Democratic votes in his narrow 2010 re-election win. After that, ironically, he went after Democratic judges as part of his with-him-or-against-him courthouse mentality. More than one judge has accused him of abusing his authority by threatening to drag them to grand juries over decisions he did not like. Another judge found him in contempt for refusing to honor a subpoena to testify; Lena Levario would be among the judges targeted by Watkins-endorsed candidates.

Dubious ethics only worsened in his second term, evidenced by his fast-and-loose treatment of forfeiture funds supposedly reserved for law enforcement purposes. Instead, Watkins chose to spend $50,000 to settle his own car crash and another $1,250 to sweep his offices for listening devices.

The car crash settlement included a $40,500 penalty paid to Watkins himself if the other driver spoke publicly about the incident.

Watkins deserves credit for many of his “smart on crime” strategies. But that was then. Now, voters should hire his successor in Hawk, even if they have to split straight tickets to do so.

If Watkins' campaign had raised more money he could respond on TV before early voting begins next week to counter the impact of this endorsement and Hawk's TV ad promising to restore voters' "trust" in the office. Instead, he must continue bleeding through the weekend and hope that Wendy Davis' campaign can generate extra Democratic turnout where he cannot. Watkins' re-election in 2010 was decided on turnout and straight ticket voting. If Susan Hawk and the Dallas Morning News convince 10,000 Democrats county-wide to split tickets in the DA's race ... well, let's just say Watkins campaign team should be in a private panic right about now. He's still probably the betting favorite given recent Dallas County electoral trends. But Watkins faces greater danger than in 2010, and there's a lot less he can do about it in the final month compared to four years ago.

Watkins' position is further weakened because of his strategy of using his prosecutors to primary Democratic judges he didn't like, a method that was in several cases successful and left factions of the party particularly upset with him. He also ran his first assistant in a failed bid for Dallas County Democratic Party Chair, which forced Democratic leaders county-wide to already choose to oppose him once this year. If just a few of them still feel bitter and defect in the secrecy of the voting booth, a close watcher of the Dallas vote count wouldn't be surprised at an upset.

Having performed opposition research in dozens of political campaigns, at this point I've broken out the popcorn and am watching the three big DA's races - Dallas, Harris, Bexar - mainly for the entertainment value. There's nothing I can do about them in these closing weeks and the voters' whimsy does not respond to reasoned argument. Watkins has done a lot of things I liked, even admired, but he's also brought virtually all of his present problems on himself. His fate is up to Dallas voters, now ... God help us all.

RELATED: Mike Hashimoto at the Dallas News liked this blog post, writing an appreciation on the DMN Opinion Blog. TANGENTIALLY RELATED: See the Texas Tribune's coverage of the Bexar DA's race, made more competitive by a single donor dumping nearly $700K into the coffers of the Democratic challenger.

Tulia-sting litigator nominated to run DOJ Civil Rights Division

Wow, do I have mixed feelings about the Obama Administration nominating Vanita Gupta to head DOJ's Civil Rights division! I first met Vanita when she and Jeff Blackburn litigated the wrongful conviction cases arising out of the infamous Tulia drug sting and there aren't many lawyers I hold in higher esteem. So it's not that I question the quality of the pick.

More, it's that Vanita has done such a good job at national ACLU's Campaign to End Mass Incarceration that I hate to see a successful advocate's work neutered by DOJ bureaucracy, particularly given the uncertainty surrounding Eric Holder's departure and the fact that his successor will serve at most two years. Her work at ACLU bridged liberal-conservative divides, as evidenced by Grover Norquist and Marc Levin's quotes in Time magazine endorsing her nomination. And Grits lacks confidence that whomever is appointed from the farm team at ACLU will share her wisdom regarding the pitfalls of ideological rigidity and partisanship.

On the flip side, Gupta's selection indicates an appreciation by the Administration of the link between civil rights and the justice system that isn't always obvious from the DOJ's day-to-day stances and court pleadings. Perhaps, if the fates are on her side, she'll be given enough leash at DOJ to actually accomplish something in what, for litigators, is really a short span of time. And who knows? I suppose if Hillary is elected in 2016 she might be invited to keep the gig.

Certainly I wish Vanita luck and endorse her unequivocally as far as her qualifications for the job, even if part of me wishes the Senate would shoot her nomination down just so she can continue her current good work.

New crime lab director at DPS

Pat Johnson has retired from his post managing the Texas Department of Public Safety's network of crime labs after 42 years of service, it was announced at a Forensic Science Commission meeting earlier this month. He has been replaced by Brady Mills, an internal hire, who was named the new Deputy Assistant Director at DPS in charge of the agency's crime labs.

I don't believe I've ever met anybody who had an unkind word to say about Pat. Even when his crime labs screwed up, and no doubt it happened on his watch, he handled it in forthright and confidence-building ways, disclosing problems and letting the chips fall where they may. In my experience, he was unafraid to face tough questions head on, despite a soft-spoken demeanor that masked the burdens of an extraordinarily difficult job.

He'll be missed; we could use more like him. Enjoy your retirement, Pat.

Brady Mills, an acolyte of Johnson's, seems like a good choice to replace him. In my limited dealings with him he seemed professional and highly competent, and he'll need to be. He takes over the crime labs at a time when they're still managing the aftermath of the Jonathan Salvador fiasco and struggling with long delays on core functions due to backlogs, massive caseload growth, and underfunding from the Legislature.

Perhaps Brady's most difficult task in the near term will be to articulate the agency's budget needs in the wake of these building pressures. The Lege has expanded crime lab budgets and physical plants significantly in recent years, but not fast enough to keep up with elevated caseload growth. DPS crime labs have already begun de-prioritizing certain types of cases to reduce the volume. IMO, something's got to give soon.

That's not a knock on management, at least at Johnson and Mills' level. It's a function of a bloated criminal justice system and a political process that enjoys touting its tuff-on-crime positions right up until the moment the bill comes due. Crime lab work isn't sexy but the system would grind to a halt without it.

Good luck, Brady. You'll need it.

Youth especially vulnerable during police interrogation

Adolescents are a "psychologically vulnerable" population when it comes to police interrogation tactics, says a study highlighted in this New York Times piece (Oct. 13), because they're easier to manipulate and don't assert their rights. The article opened:

Even when police interrogators left the room, cameras kept recording the teenage suspects. Some paced. Several curled up and slept. One sobbed loudly, hitting his head against the wall, berating himself. Two boys, left alone together, discussed their offense, joking.

What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.

Therefore none had a lawyer at his side. None left, though all were free to do so, and none remained silent. Some 37 percent made full confessions, and 31 percent made incriminating statements.

These were among the observations in a recent study of 57 videotaped interrogations of teenagers, ages 13 to 17, from 17 police departments around the country. The research, published in Law and Human Behavior, adds to accumulating evidence that teenagers are psychologically vulnerable at the gateway to the criminal justice system. Youths, some researchers say, merit special protections.

According to federal statistics, nearly 1.5 million teenagers were arrested in 2011, the last year for which data was collected.

The article concluded mentioning a couple of other recent developments on false confessions of which I wasn't aware:

Citing recent research, the American Psychological Association has called for widespread protections for suspects, including teenagers, during interrogations. The recommendations include limiting the length of interviews; videotaping them in their entirety; assuring that teenagers are always accompanied by a lawyer; and that interviewers be trained to reduce the risk of eliciting false confessions from impressionable suspects such as youths.

This spring, the International Association of Chiefs of Police, a law enforcement coalition, along with the federal Office of Juvenile Justice and Delinquency Prevention, developed online training for those who interview adolescents. Drawing from developmental research, the program instructs officers to explain Miranda warnings in language teenagers will understand and not to make false promises of leniency, because of youths’ proclivity toward gullibility.

“We want to avoid involuntary or false confessions from juveniles,” said John Firman, director of research for the association. “The ultimate goal is to get accurate information from them. And if you don’t understand juvenile brain development, the likelihood is that you’ll get bad information.”

Roundup: Of drones, drugs, and DA elections

Here are several items that merit Grits readers attention but haven't made it into individual posts:

Craig Watkins' fumbling Dallas DA campaign
Grits mentioned earlier that the Dallas, Harris and Bexar County DA's races interested me as potentially close, competitive toss-up races, in Bexar because a single donor dropped $600K on the Democratic challenger. In Dallas, where I'd already thought the race would be close, Gromer Jeffers at the Dallas News reported that challenger Susan Hawk has out-fundraised Craig Watkins roughly 5-1 and is running TV ads, which are "a rarity for a countywide race, and will be following up with direct mail and other contacts to nudge voters to go to the polls. She’s actively trying to peel Democratic voters away from the incumbent." Meanwhile, Watkins team "lacks a professional campaign manager and field director, perhaps because there is no money to pay them." In 2010, Watkins raised $750K and won by about 5,000 votes. He appears more vulnerable now and I wouldn't be surprised to see Hawk upset the favored incumbent.

Corrupt cop escorted drug loads in Houston
A former Houston police officer, Marcos Carrion, pled guilty to escorting drug shipments through town on behalf of a drug cartel, the Houston Chronicle reported. See an FBI press release and the plea agreement.

Montgomery Sheriff will drone again
The Montgomery County Sheriff's Office will replace the quarter-million dollar drone they sank in Lake Conroe with insurance money. This was the second time they'd crashed the thing in as many years.

Listen to Texas Tribune crimjust panels
I'd neglected to link to the Texas Tribune's online postings of two criminal justice related panels at their recent festival on criminal justice reform and the death penalty (because we don't talk about that enough!). Go here to listen.

5th Circuit Judge: Innocents executed analogous to collateral damage from drone strikes
A complaint against 5th Circuit Court of Appeals Judge Edith Jones for alleged has been dismissed by her fellow 5th D.C. Circuit jurists, which doesn't seem like the most impartial group to evaluate the challenge to one of their peers. Reported the Houston Chronicle:

the dismissal order released this week says Jones herself admitted to describing mental disability as a "red herring" in death penalty appeals, though it is a defense approved by the U.S. Supreme Court.

She admitted she used an analogy to drone strikes in rebuttal to the argument "that the death penalty kills innocents."

She agreed she'd said something about how Mexican nationals might prefer American death row to prison in their own country, even though Mexico does not have capital punishment, and that she said both blacks and Hispanics sadly "seem to commit more heinous crimes."

But none of those comments were considered misconduct by the investigating judges.

Private foundations fund police surveillance tech
Police departments are looking to private foundations to pay for Stingray surveillance devices and other equipment they don't want to have to justify through the formal budgeting process, reported ProPublica. 

Suit over reality TV filming warrantless SWAT raid will go forward

A federal judge has concluded that portions of a lawsuit may go forward over allowing reality TV cameras to film a botched 2011 SWAT raid in Montgomery County. The video was released as part of the reality show "Texas Takedown."

The officers allegedly fudged the search warrant affidavit: "After searching the residence and allegedly finding marijuana plants, the officers wrote a misleading affidavit to get a search warrant, which arrived about 12:30 a.m. the next morning." The suit alleges that DA Brett Ligon and his first assistant advised officers by phone to enter the home without a warrant. If true, maybe that needs to be the subject of a state bar grievance.

ISIS in Texas and the 'global war on jackalopes'

On BurkaBlog (Oct. 9), Eric Greider at Texas Monthly showed that claims of ISIS terrorists entering Texas through the Mexican border are falsehoods, suggesting the next logical step for those blustering over terrorists crossing the border should be to launch a "global war on jackalopes," which pose a similar level of threat. She concluded:

there's no plausible reason to think that this is one of those cases where the lack of evidence suggests conspiracy or suppression, rather than an actual lack of evidence of ISIS fighters trying to cross the border. In certain circles, both of the preceding points--the lack of evidence and the lack of logic--are being dismissed by some fearmongers on the basis that it's better to be safe than sorry. They may be correct about that principle, and if so, we should all be concerned. If Texans focus undue energy on being infiltrated by ISIS, that necessarily limits the resources we can direct to fighting other threats--some of which, unlike this one, are actually serious issues on the border; some of which, unlike this one, are real.

See related, past Grits coverage.

MORE: The lies just keep on coming.

New Travis 'private defender' will lower bottom line of oft-appointed lawyers

Texas Lawyer has a report on Travis County's new indigent defense system (Oct. 9) in which attorney assignments have been outsourced to a nonprofit organization operated by the local criminal defense bar. The project is ramping up now:

From Oct. 10 to Oct. 24, Davis said attorneys who are now on the list to accept indigent-defense appointments must reapply to land spots—based on qualifications and experience—on the private defender service's lists. For example, there will be lists for felonies, misdemeanors, appeals, mental health cases and Spanish-speaking cases.

"As an indigent defendant comes into the system by arrest we have a wheel or rotational system to select attorneys," [executive director Ira] Davis said. "It's a random process, but it's a random process among qualified attorneys."

Some local attorneys, though - the ones receiving the lion's share of appointments under the old system, are displeased that the new approach will reduce their incomes:

"The next year or so is going to be very difficult because there are going to be some growing pains. There are some lawyers who have been receiving court appointments in a disproportionate share who are going to be hurt by this financially, so there is a significant amount of pushback from the lawyers who see their bottom line being harmed by this system," said Judge David Wahlberg of the 167th Criminal District Court in Austin.

Defense lawyers who take indigent-defense appointments contacted by Texas Lawyer declined to comment on the change.

Wahlberg said the service would eventually provide a "tremendous benefit" to the criminal-justice system by giving defendants better representation and making them more confident in their court-appointed lawyers. He explained that when a client sees a judge handling payment for his lawyer, the client might question his lawyer's independence.

"If there is not an actual influence there, there's at least a perceived influence," Wahlberg explained. "Trying to ameliorate that problem is maybe the biggest benefit of this."

See prior Grits coverage.

Jails can (and should) opt out of federal Secure Communities program

Travis County Sheriff Greg Hamilton has insisted in the past that his hands are tied when it comes to participation in the federal Secure Communities program, which requires jails to place immigration holds on arrestees who are otherwise eligible for release, even though most of them were charged with minor offenses, including traffic offenses and there's scant evidence the program improved public safety.

A few years later, though, we now know that it's simply false that the Sheriff is compelled by a federal mandate to honor ICE deportation holds, as evidenced by this article from the LA Times, "More jails refuse to hold inmates for federal immigration authorities" (Oct. 4). Here's a notable excerpt rebutting the "we have no choice" meme.

Although some localities started limiting the number of immigration holds a few years ago, the trend of completely ignoring the requests gathered steam this spring after a series of federal court rulings determined that the immigration holds are not mandatory and that local agencies should not be compelled to follow them. ...

Currently, more than 225 local law enforcement agencies nationwide have adopted policies to completely ignore requests by Immigration and Customs Enforcement officials to hold an inmate for an additional 48 hours after his or her scheduled release date from jail. Another 25 agencies have limited the number of immigration requests they will honor. New York City is among those considering ways to stop or limit holds. ...

In March, the 3rd U.S. Circuit Court of Appeals in Pennsylvania ruled that states and local law enforcement agencies had no obligation to comply with immigration hold requests because the requests did not amount to the probable cause required by the Constitution to keep someone in jail. Other courts have come to similar conclusions.

On Monday, another federal judge in Chicago reaffirmed that local law enforcement agencies should not consider the ICE holds mandatory.

In New Mexico, all county jails are no longer honoring immigration holds, said Grace Philips, general counsel for the New Mexico Assn. of Counties.

Some county officials stopped the practice because they were fearful of exposing themselves to expensive litigation, Philips said. Others saw it as a way of relieving their already overburdened jails, especially because the Department of Homeland Security did not reimburse localities for housing the inmates during the extended stay.

In the neighboring border state of Arizona, only South Tucson is declining to grant holds, also known as immigration detainers. In Texas, it appears that no locality stopped honoring hold requests, said Lena Graber, an attorney who tracks the issue for the Immigrant Legal Resource Center in San Francisco.

In California, a state law implemented in January — the Trust Act — stipulates that law enforcement agencies can only honor immigration holds if the inmate who is suspected of being in the country illegally has been charged with, or convicted of, a serious offense. Also, most law enforcement agencies in the state — including the Los Angeles Police Department — adopted policies ignoring the immigration holds altogether after the federal rulings came down.

So this claim that counties' hands are tied fails to hold up to scrutiny. These are policy choices, not mandates from on high. In the current, nativist climate, perhaps they are popular choices in Texas. But Hamilton and other Sheriffs must abandon the claim that this is something the feds can force them to do. That's a fib.

That said, California's Trust Act sounds like a decent compromise on this: Limit ICE detainers to serious offenses and the controversies about un-reimbursed jail costs and mothers deported over traffic offenses go away. Few people, myself included, have a problem with ICE detaining dangerous people for deportation after they've served their sentence. My beef has always been with casting the net too widely, needlessly boosting jail costs, breaking up families and creating disincentives for witnesses and crime victims to cooperate with police.

MORE: Sheriff Hamilton stands fast despite community criticism over participation in the program.

Feds won't combine prison heat litigation cases

The National Law Journal reported (Oct. 10) that the federal courts will not combine the numerous lawsuits challenging excessive heat in Texas prisons as cruel and unusual punishment under the Eighth Amendment. Here's a notable excerpt from the story:

A federal panel has refused to coordinate lawsuits filed on behalf of inmates in Texas state prisons who died or suffered heat strokes from soaring temperatures during the summers of 2011 and 2012.

The Texas Department of Criminal Justice and its executive director, Brad Livingston, represented by Texas Attorney General Greg Abbott, moved on July 14 to transfer seven cases for pretrial purposes to U.S. District Judge Keith Ellison in the Southern District of Texas, where a class action is pending on behalf of inmates of the Wallace Pack Unit, a geriatric prison facility near Houston. Jeffrey Edwards of Edwards Law in Austin, who represents the plaintiffs in most of the cases, supported the move.

The cases—all filed in federal courts in Texas—allege that being housed in temperatures of more than 100 degrees constituted “cruel and unusual punishment” under the Eighth Amendment. They also claim they were not accommodated under the Americans With Disabilities Act and the Rehabilitation Act. Most of the prisoners had disabilities, such as diabetes or hypertension.

The U.S. Judicial Panel on Multidistrict Litigation heard oral arguments on Oct. 2 in Louisville. On Thursday, the panel found that coordination wasn’t appropriate because the cases were at varying stages of discovery and the same plaintiffs attorney had brought most of them.

That attorney, Edwards, who has partnered with the Texas Civil Rights Project on the litigation, said he represents the families of eight inmates who have died and one who survived a heat stroke. But others have been filed by inmates themselves. “There was some concern about the effect an MDL would have on pro se inmates filing these claims,” he said of the panel’s decision.

Of architecture and incarceration culture in Dallas

Dallas Morning News architecture critic Mark Lamster offered up a terrific essay last week (Oct. 3) lambasting "the complex of jails that are the unholy gateway to our city." He referred to the now-vacant Dawson State Jail as a "grim block that looks like some kind of dystopian Lego project." And he rightly lamented "the rambling and almost defiantly ugly Lew Sterrett Justice Center, a dispiriting agglomeration of mud-brown structures that seems designed to dehumanize all who would approach." Really good stuff. Find the essay's opening paragraphs below the jump:

Hall to Governor: Pardon Max Soffar

At Texas Monthly, Michael Hall has published an extended open letter to the governor pleading for executive clemency in the case of Max Soffar, who has "been on death row for a third of a century for a crime I'm certain he did not commit." Soffar has liver cancer and will likely perish before the courts decide his pending habeas corpus writ. Hall urged the governor to allow Soffar to die at home with his family instead of in prison.

RELATED: See an essay on Grits from Texas Southern journalism chair Michael Berryhill about Soffar's case.

New laws aimed at reducing tickets in school worked: 83% fewer last year

New laws aimed at reducing tickets given to students for in-school misbehavior resulted in a whopping 83 percent year-to-year drop in the number of tickets written, according to data revealed at yesterday's joint hearing of  the Corrections and Public Education Committees. Here's how Chuck Lindell's coverage in the Austin Statesman (Oct. 8) opened:

Working as intended, two state laws passed in 2013 have fueled a larger-than-anticipated 83 percent decline in the number of Texas schoolchildren prosecuted in adult court for infractions such as disrupting a classroom, court figures show.

Including other misdemeanor school-based offenses, almost 90,000 juvenile cases were kept out of adult court by the new laws, which were written to encourage schools to handle most behavior problems internally instead of relying on police or the courts, two Texas House committees were told Wednesday.

“We were expecting a drop. I don’t think we were expecting that significant a drop in the first year,” said David Slayton, director of the state Office of Court Administration.

The sharp decline in the number of juvenile prosecutions, publicized for the first time at Wednesday’s joint hearing of the House Corrections and Public Education committees, offered early evidence that the laws were working to reduce the number of children saddled with criminal records for relatively minor school offenses, legislators and criminal justice advocates said.

See additional coverage from KWBU radio and written testimony presented to the committee from TCJC's Jennifer Carreon.