On the folly of releasing prisoners directly from solitary to the free world

Texas features prominently in the Marshall Project's Christie Thompson's investigative feature on state prisoners released directly from solitary confinement into the free world. Good stuff; give it a read. See also 2014 Texas data on length of stay in ad seg and the number of inmates released directly to the street (1,445), including those released with no parole supervision whatsoever (832).

Speaking of ad seg, this reminds me of another report, this one from ACLUTX on solitary confinement, that Grits never read because it came out after the 84th legislative session began. Here's the pdf version. Add it to the summer reading list.

Related Grits posts:

• On the perils of reentry following solitary confinement and possible solutions 
• Does excessive use of solitary confinement harm public safety? 
• Don't release inmates directly from solitary into the free world 

On bail, plea bargains and innocence

Proponents of bail abolition this week found succor in several high-profile national media investigations into the topic, starting on Sunday night with HBO's John Oliver:

• John Oliver on bail
• New York Times feature, reporter's notebook, and followup
• Marshall Project
• Slate
• San Francisco Gate

And of course, issues surrounding bail are at the center of the mess in Waco regarding the Twin Peaks biker shootout, where it appears likely that innocent people were indiscriminately rounded up and jailed on a $1 million bond. Recent Texas Tribune coverage began:

More than three weeks after Waco police arrested 177 bikers following a deadly shootout at a local restaurant, no charges have been filed in the killings, nearly half the bikers remain in jail on unusually high bonds, and more than a few legal experts — including former prosecutors — are starting to wonder what is going on in McLennan County.

Regular readers will recall that McLennan DA Abel Reyna's super-tough plea policies were already causing jail overcrowding and backed up court dockets in Waco. But this episode takes the cake.

The issues surrounding bail, pretrial detention, and underutilized pretrial services programs are long-time fodder for this blog, dating at least to this series focused on Harris County in 2005. I'm glad to see the subject finally receiving wide attention, and hope it keeps up.

Eliminating bail and replacing it with risk-assessment-based decision making and monitoring by pretrial services divisions would reduce jail overcrowding as well as enhance individual rights, since there would be far less disincentive to waive them in order to get out of jail quickly.

A lot of low-level, less serious innocence cases - where a defendant is actually innocent but pleas guilty because of the rotten cost-benefit analysis associated with going to trial - might be uncovered if we were to change the incentives around jail, bail, and plea bargains. Right now those instances are masked in part because defendants who can't make bail face an overwhelming incentive to plea bargain, whether they're innocent or not.

Released from death row, 'exoneration' disputed: The Alfred Brown case

The release of Alfred Brown - sentenced to death in 2005 after it was revealed that the Harris County DA's Office withheld key evidence and a corrupt grand jury manipulated an alibi witness - marks the end of an awful saga for one man, and the beginning of a debate about his story's meaning. See coverage from:

• Houston Chronicle
• Houston Chronicle
• Houston Chronicle (Falkenberg)
• Houston Chronicle (editorial)
• Washington Post
• Associated Press

Press accounts pinned the proximate cause of Brown's release on a Brady violation (the state withholding exculpatory evidence), in particular phone records which corroborated his alibi. According to the Houston Chronicle:

Texas' highest criminal court on Wednesday threw out the 2005 conviction and death sentence of Alfred Dewayne Brown after finding that the Harris County District Attorney's Office withheld material evidence favorable to Brown's case.

In a brief order, the Texas Court of Criminal Appeals sent the case back to the lower court for a new trial.

It's especially poignant when someone walks away from death row a free man. (Radley Balko reported, "According to the Death Penalty Information Center, Brown is the 12th death row exoneration since 2013, and the fourth death row inmate exonerated so far this year.") What greater contrast could there be than to take someone awaiting death in a small box and send him home, declaring him free and clear?

The DA's Office went out of its way to avoid declaring Brown "innocent" - which would have entitled him to state compensation - much as Burleson County prosecutors did to Anthony Graves, at first. But it is certainly true Alfred Brown is "not guilty." The DA's decision not to formally exonerate him likely sets the stage for civil litigation, which may not end up being the wisest choice the widow Anderson ever made. She has missed an opportunity to put the issue behind her and wear a white hat. Whatever chits she earns with the police union from sticking to her guns won't outweigh the role of obstructionist/villain she risks playing in Lisa Falkenberg's Pulitzer-Prize winning saga at the Houston Chronicle about the case.

Amazing the lengths folks will go to to keep from saying "We made a mistake."

Regardless, Mr. Brown will be considered "exonerated" by national standards, reported the Chronicle:

Monday's decision does mean Brown will be listed as "exonerated" by Maurice Possley, a senior researcher at the National Registry of Exonerations.

"He fits our criteria," Possley said.

He said the requirements for exoneration are that a conviction goes away, either because the charges are dismissed or an acquittal at a retrial, and there's evidence that was not available at the first trial that is favorable to the defendant.

So barring new evidence, DA Anderson and the police union likely are on the wrong side of history on this one. Brown will be "exonerated" in both public perception and historical accounts whether or not the court or the state ever formally declares him innocent.

DNA test cleared rape allegation against prison guard

Here's a story of a front-end DNA exoneration I hadn't heard before which occurred in the Texas prison system - a guard falsely accused of raping a female inmate. The anecdote appeared in a recent Marshall Project story on Nigerian guards working in the Texas prison system:

In 2009, a Nigerian officer in Huntsville named Marshall Akpanokop was accused of raping and impregnating a female prisoner. He was later proven innocent when a DNA test revealed that he was not the father, but Akpanokop sued the agency, arguing he had been “singled out as the culprit” because “he was a dark-skinned, Nigerian national with an accent.”

Lamenting missed opportunities on criminal justice

The 84th Texas Legislature witnessed a few bright spots on criminal justice: E.g., ending the pick-a-pal grand jury system, giving judges tools to combat junk science via habeas corpus, scaling back use of state youth prisons, decriminalizing truancy, and, perhaps the biggest one that's received no MSM attention, adjusting property theft thresholds for inflation for the first time since 1993. Fourteen or 16 years ago, Grits would have considered that quite a successful session. But times have changed and, compared to the opportunities left on the table, these successes as a whole leave a lingering taste of weak tea. The Houston Chronicle editorial board last week summed up the cause for disappointment:

Like practically every other issue confronted by the Legislature, criminal justice reformers ended up with a mixed bag of moderate accomplishments, watered-down deals and failed bills. They even drew a veto from Gov. Greg Abbott, who struck down a Good Samaritan bill that would have protected people from prosecution if they call 911 to report a drug overdose. Apparently saving lives isn't as important as being tough at any cost. And that's a cost that adds up. On average, Texans pay $51 a day to keep someone in a state prison and $59 to keep someone in jail, according to the Texas Criminal Justice Coalition. In contrast, it is only $1.56 to supervise a probationer. So while U.S. Sen. John Cornyn is working at the federal level to pass legislation that would allow low-risk prisoners to spend more time in home confinement instead of in prison, state legislators have kicked that can down the road.

Despite pre-session hype, legislators failed to pass legislation that would lower penalties for nonviolent offenders, notably state Rep. Joe Moody's bill to decriminalize marijuana. No wonder the Department of Criminal Justice general revenue budget grew by nearly half a billion dollars for the next biennium. All that money does little to actually reform prisoners and help them become productive members of society. Legislators even ignored some of the lowest-hanging fruit among criminal justice fixes: Treat 17-year-olds as juveniles rather than adults. Intensive juvenile detention and probation programs can put kids back on the right track, and federal law compels Texas to change this standard. But apparently, legislators are content plucking teenagers out of society just as they approach adulthood and surrounding them with hardened criminals.

Texas doesn't make it easy when people leave prison, either. A bill to "ban the box," which would prevent state agencies from asking about one's criminal history on job applications, passed the state House but not the Senate. Supported by the Center for American Progress, a progressive think tank, and the conservative Koch Brothers, this initiative is supposed to help convicted felons get their foot in the door for job interviews before having to reveal their records. As Houston Police Chief Charles McClelland said in a radio interview last year, there's "a lot of young men who are minorities, in their early 20s, have a felony conviction on their résumé, and now they're unemployable."

Grits would add to that critique a failure to pass any meaningful reform on the Driver Responsibility surcharge. (DPS did to commit to Homeland Security and Public Safety Committee Chairman Larry Phillips that it will roll out more Amnesty periods in the near future.) And asset forfeiture legislation appeared promising on the front end but stalled out thanks to opposition from leadership.

Perception of success is relative: Some good things happened this session, and we didn't take too many overt steps backward (a few). But compared to what should have been done, what needed to be done, it was a disappointment.

Parole commissioner trial scheduled Monday, million dollar biker bails, and other stories

Grits has yet to fully recover from the legislative session so blogging remains light. Here are several items which under normal circumstances likely would have made it into independent posts:

Ex-parole commissioner's record tampering trial scheduled Monday
Former Texas parole commissioner Pamela Freeman is scheduled to go on trial Monday morning at 9 a.m. in Walker County for tampering with government records, according to the Walker County records system. See background on the case from parole attorney Kevin Stouwie and prior Grits coverage. Thanks to a commenter for the heads up.

Complaint filed against JP who set million-dollar biker bails
Grits hasn't had bandwidth to closely follow the case of 170 bikers arrested after a shootout in Waco, but I'm pleased to see a complaint was filed with the State Commission on Judicial Conduct against the Justice of the Peace who ordered $1 million bonds for every defendant. Austin attorney Keith Hampton has filed a habeas corpus petition demanding that individualized bail hearings be handed off to out of county jurists. That JP shouldn't be setting bail, anyway, if he can't do so based on a defendant's individual circumstances: Sometimes it seems as though officials in the McLennan justice system don't understand they're bound by the same laws and ethical constraints that govern everyone else.

Jail phone calls and the Michael Morton Act
If a jail records all inmate phone calls are prosecutors required to vet them for Brady material under the Michael Morton Act? Tarrant County requested an AG's opinion on the issue, as reported by Texas Lawyer. Remarkably, "if the AG opinion finds that the Morton act does require prosecutors to review inmate calls, then the office might ask for a revision to the county's contract for jail telecommunication services to completely remove prosecutors' access to the calls."

You can't manage what you can't measure
See coverage from the Dallas News of legislation to gather data on police shootings and serious use of force.

Texas vs. One Gold Crucifix
See a feature from the Coalition for Public Safety on asset forfeiture abuses.

Prisoner publishing 'Arts and Letters' column
In Dallas, D magazine is publishing a series of columns on topics of "Arts and Letters" from federal prisoner Barrett Brown, who was sentenced to 63 months in prison for helping cover up in the aftermath of the Stratfor email leak. See his latest column here and also past offerings.

'Why the criminal justice system is a massive failure'
Such is the title of an op ed this week in the Austin Statesman.

Difficult to read tea leaves from oral arguments on junk science writ

The vote on the Court of Criminal Appeals interpreting Texas' junk science writ looks to be ridiculously close - probably another 5-4 outcome - judging from oral arguments this morning in Ex Parte Robbins. But no one, I think, could reasonably guess after today's arguments which way it might go.

Neal Robbins' attorney Brian Wice called recanted testimony from Dr. Patricia Moore the lynchpin of the case and his opponent, Bill Delmore, agreed that if Dr. Moore was wrong (which is her revised opinion about her original testimony), Robbins gets relief. But the discussion from the judges indicated the outcome likely won't be that simple, even if it should be.

The judges who wanted to debate legislative history last go-round shifted gears, for the most part, in light of passage of HB 3724 codifying the court's ruling in this same case from last fall. Judge Elsa Alcala read aloud from the bench the senate bill analysis specifically declaring the bill's intent was to codify their decision.

There was some grumbling, though, particularly from Judge Sharon Keller, that the Legislature couldn't interpret its own statutes post hoc, though the sort of verbal commentary about intent she was describing is quite different than the formal act of passing a second law codifying a court's interpretation of a first one. There was additional discussion of whether they should consider HB 3724 at all before the governor signs the bill, and a surprising level of willful indifference regarding the implications of the new legislation.

Still, with the legislative intent argument weakened, Judge Michael Keasler hoped to change the focus to a harmless error analysis. And that seemed like the avenue which may prevail if the state wins this rehearing, even though it wasn't even part of the discussion last year. How it could be harmless error that a medical examiner wrongly called a death a homicide in a capital murder trial, it's hard to say, but that's where some judges wanted to go.

Indeed, as Mr. Delmore said, it's hard to imagine the outcome at trial would not have been different if no one could say the death was a homicide. But granting that didn't seem to dissuade Judge Keasler, in particular, from pursuing the harmless error line of reasoning. 

From their comments at this morning's arguments, I'd guess the four dissenters still on the court - Keasler, Hervey, Keller and Meyers (who was absent today) - will all stay in opposition to Robbins' petition. Meanwhile, David Newell voted against rehearing and seemed sympathetic to the implications of the Lege passing HB 3724. If he sides with the Robbins II majority, that makes Yeary and Richardson the two swing votes. Richardson's questioning was brief and unrevealing; Yeary's comments cut both ways. I couldn't begin to guess how they might vote. This one's going to be tight.

MORE (6/4): A Dallas News staff editorial encouraged the Governor to sign HB 3724. See also coverage of oral arguments from the Houston Chronicle's Mike Ward.

See related Grits posts:

• Previewing oral arguments on Texas' junk science writ
• Podcast: Tweaking Texas' junk science habeas writ
• Habeas matters: Appointing counsel, codifying Robbins
• CCA: Junk science writ covers bad scientists as well as bad science

Report: Emerging issues with the Michael Morton Act

In mid-session, the Texas Defender Service and Texas Appleseed came out with a joint report titled, "Towards More Transparent Justice: The Michael Morton Act's First Year," evaluating Texas' new criminal discovery law that took effect January 2014. But Grits couldn't focus on a lengthy, law-review style analysis at that frenzied point, so only read the document yesterday. For anyone with a professional interest in the matter, the whole thing is worth reading. On the assumption that few lay readers will take the time to do so, however, let's offer up a brief, cherry-picked summary of the highlights:

Greg Abbott to veto harm reduction legislation

Grits was informed this afternoon by Rep. Ryan Guillen's staff that the governor will veto HB 225 creating a defense to prosecution for people who call 911 during a drug overdoses. Because, why would you want to prevent a drug user from dying? Twenty-four states and the District of Columbia have passed Good Samaritan laws that protect overdose witnesses and victims who request emergency medical assistance

The bill passed 140-4 in the Texas House and 30-1 in the Senate, so until now it didn't seem controversial.

Thankfully, a portion of the bill expanding access to naloxone, an opiod antagonist, passed as a standalone, SB 1462, and also went to the governor. Maybe that piece will make it through.

See prior Grits coverage here, here, and here, and the House Research Organization report (pdf, p. 21) on the bill. See also a detailed (88 page) fact sheet on Good Samaritan laws and overdose prevention from the Network for Public Health Law.

What a terrible decision. That doesn't bode well.

UPDATE (6/2): The bill has been formally vetoed. Reported the Texas Tribune, "In a veto statement Tuesday, Abbott said HB-225 lacks 'adequate protections to prevent its misuse by habitual drug abusers and drug dealers.' He noted his office came up with amendments to address the concern, but they did not make it into the final version of the bill." That's a bit of a half-truth. First, Abbott's people never raised concerns with the House author at all, waiting to intervene after the bill had already won overwhelming approval in the lower chamber. And second, some of Abbott's amendments were accepted, but the rest were designed to thwart the fundamental intent of the bill. Plus, his staff kept moving the target. Some observers believed Abbott's amendments would have made the bill worse than current law in terms of providing disincentives for calling 911 in an overdose emergency. Further, there's really no valid use case where "misuse" can even be credibly hypothesized, all the valid concerns were entirely addressed. But a veto doesn't need credible argument, just a stamp and a signature. 

MORE: See additional coverage from the Dallas Observer. 

Previewing oral arguments on TX junk science writ

The 84th Texas Legislature ends today but Grits is already looking forward, as are a few stalwart reporters who're paying attention, to oral arguments on Wednesday at the Texas Court of Criminal Appeals for Ex Parte Robbins III, deciding once and for all (or at least, for now) whether the state's new junk science writ will be interpreted broadly, as the court ruled last year, or narrowly as the presiding judge and a strident minority on the court would prefer.

At the Houston Press, Craig Malisow previewed the case and the Marshall Project's Maurice Chammah wrote about it last week. And of course, in this Grits podcast, Texas Defender Service policy director Mandy Marzullo described the complex interplay between the law the court will be interpreting and a new statute sent to the governor last week essentially codifying the court's ruling from last year. Grits had earlier described the odd scenario witnessed this spring as a "race": After  three new members joined the court, it was announced they would rehear the case. So, the legislature rushed to pass a remedial statute before the least dangerous branch could weaken its earlier decision. See an amicus brief submitted to the court by the Innocence Project of Texas.

For Grits, Wednesday's arguments represent the final stage of a journey that began back in 2008 when the idea for a junk science writ was first developed - among the first things I worked on at the Innocence Project of Texas. That effort gained greater steam after the National Academy of Sciences in 2009 issued a major report critical of the lack of scientific basis underlying several prominent forensic methods and techniques and their presentation in court. Then the suggestion was endorsed by the Tim Cole Advisory Panel on Wrongful Convictions. When the bill passed in 2013, it was the first in the nation of its kind (California followed suit with their own version earlier this year). And then the tight 5-4 decision last year gave the new law about as much life as any of us could have hoped.

I'd like to think the Herrero/Whitmire bill codifying Robbins II would settle the matter, since that case itself hinged largely on questions of legislative intent. But Grits is not entirely confident that was the principle reason for opposition last time around so much as the nearest available excuse. So I'm slightly less sanguine about the outcome than one might expect, despite the 84th Legislature's clear expression of legislative will. If anybody can pull it off, though, it's Robbins' attorney, Brian Wice, against whom one wouldn't want to bet in a rubber match. Time will tell. Wednesday ought to be fun.

Grits' end-of-session reading list

Now that session is ending, Grits has quite a bit of backlogged reading in front of him. For my own convenience I'm gathering links here, and maybe some of y'all will be interested in the same titles.

• Texas Indigent Defense Commission, et. al., "Guideline for Indigent Defense Caseloads." This one's from January but I never fully vetted the 114 page document after Grits initial coverage. One wonders how many attorneys with above guideline caseloads are actually fulfilling their basic duties articulated in the state bar's "Performance Guidelines for Non-Capital Criminal Defense Representation"?
• Texas Defender Service/Texas Appleseed, "Toward More Transparent Justice: The Michael Morton Act's First Year."
• Texas Municipal Courts, The Recorder, "The Fair Defense Act and the Role of the Magistrate."
• Can't vouch for this paper, but the topic of "Brain Science and the Theory of Juvenile Mens Rea" is certainly ripe for serious discussion.
• Here's a new article on state-level regulation of criminal history records, "Expunging America's Rap Sheet in the Information Age." 
• From ACLU of Texas: A Solitary Failure: the Waste, Cost and Harm of Solitary Confinement (Feb. 2015).
• See a white paper from the Texas Public Policy Foundation on pretrial proceedings for indigent defendants (April 30, 2015).
• Human Rights Watch: Callous and Cruel: Use of force against inmates with mental disabilities in US jails and prisons. (May 2015)
• From the Detention Watch Network and the Center for Constitutional Right, "Banking on Detention: Local lockup quotas and the immigration dragnet." 
• From the Congressional Research Service, "Risk and Needs Assessment in the Criminal Justice System." 
• From the Vera Institute: "The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration." 
• A 2014 law review article: "Brady Reconstructed: An overdue expansion of rights and remedies."

And there are a few habeas corpus related items stacked up in the to-read list:

• I'm interested in a couple of law review articles focused on federal habeas corpus, starting with "Habeas Corpus and the Innocent," and a related item titled, "Beyond a Reasonable Disagreement: Judging Habeas Corpus." The latter article analyzes the high bar to relief in federal habeas claims, which makes me interested to see somebody rigorously analyze, compare and contrast the federal case law and Texas habeas standards, which are more flexible statutorily and (slightly) more generous regarding actual innocence. Most innocence cases I've known much about here in Texas found relief through state habeas writs, which is why I also want to read this item on the decline of state-level habeas over the last 40 years in Georgia.
• Grits has wanted to learn more about writs of amparo, a Mexican-originated post-conviction writ comparable to but different from habeas corpus. Though this item is a few years old, the author discusses its use in the Phillipines "as a remedy to address cases of extrajudicial killings and enforced disappearances."
• Abraham Lincoln represented a slave owner in a habeas case before he was president. Despite the hagiographic abstract (one hopes, but somehow doubts, it's justified - as a southerner, I know about folks who want to liberate their favorite historical figures from their historical moment) I want to know more, or at least comb the footnotes.

Finally, I was sent an unsolicited review copy of "Caught: The Prison State and the Lockdown of American Politics." Don't know the author, but I may give it a try.

Let me know what else you think merits inclusion on my summer reading list, or what criminal justice material you've been reading lately.

Lieber: TDCJ, DPS linked by opacity policies

At the Dallas News, columnist David Lieber documented the ouster of former TDCJ flak Michelle Lyons, a development discussed on Grits back in February.

Lieber portrayed the episode as part of a pattern across justice agencies, having "recently told the story of how the Texas Department of Public Safety’s public information department isn’t always forthcoming." Similarly, he wrote, "Lyons says she got crosswise with TDCJ administrators because they decided she was too open with the news media, and, by extension, the general public. They wanted to clamp down on public information, too, she says."

Misplaced criminal-justice budget priorities

According to this summary (pdf) of the budget conference committee report, Texas will boost spending on corrections from general revenue by nearly half a billion dollars in the next biennium under the new budget, including 8% raises for correctional and parole officers and $139.4 million more for prison healthcare (which is still $35 million below what the agency said was needed to meet minimum standards).

$6.7 billion in All Funds and $6.6 billion in General Revenue Funds and General Revenue Dedicated Funds is provided for the incarceration, probation, and parole of adult offenders in the Texas Department of Criminal Justice (TDCJ) which includes housing, security, classification, food and necessities, healthcare, and treatment services. General Revenue Funds are increased by $458.4 million for the 2016–17 biennium and include $188.0 million for an 8.0 percent pay increase for TDCJ correctional and parole officers, and a $139.4 million increase for Correctional Managed Health Care. Funding for Correctional Managed Health Care for the 2016–17 biennium totals $1.1 billion.

They gave private prisons $18 million extra and allocated a small but necessary sum to DWI treatment. They allocated $0.5 million for PREA audits.

However, despite overall expenses rising in the mid-nine-figure range, the Legislature failed to pass significant sentencing reform for nonviolent offenders or find a way to divert the sick and elderly (who are driving healthcare cost increases). So there's really no reason to think these budget items won't continue to grow.

Add to that amount the extra $800 million going to DPS for border security, and Texas boosted spending on law enforcement and prisons by more than $1.25 billion with very little if any public safety benefit to show for the expense.

For all that extra spending, though, and despite the hoarding fest going on with the spending cap and rainy day fund, legislators couldn't find the $230 million or so needed to abolish the Driver Responsibility surcharge, and all of the reform bills - like nearly all criminal-justice reform bills every year - died in the House Calendars committee or were set on the calendar too late to receive a vote.

When the smoke finally clears, there may be a few decent policy bills that passed this legislative session, but on the big stuff - scaling back mass incarceration and skyrocketing public safety budgets - Texas went decidedly in the wrong direction.

DOJ civil rights chief shaped by landmark TX litigation

In the course of twenty years in Texas' criminal-justice reform movement, Grits has enjoyed the good fortune to work with a bevy of amazing women and, for whatever reason, only a handful of men operating at the same, high levels who for the most part were unable to get out of their (our) own way.

Emblematic of the former, happier, group is Vanita Gupta who took over as acting head of the Civil Rights Division at the US Justice Department in October but, in a past life, was once co-counsel on behalf of the NAACP Legal Defense Fund in the legal tussle following the Tulia drug busts. She went on to run national ACLU's Campaign to End Mass Incarceration before President Obama selected her for the Civil Rights post.

The Tulia episode, which for all intents and purposes inaugurated Texas' 21st century criminal-justice reform movement as we know it today, transformed the political and legal landscape surrounding the drug war and innocence issues in this state. Bail mechanisms put in place to free the Tulia defendants while awaiting the processing of habeas writs were later routinely used to free DNA exonerees. Voting blocks first created to pass reform legislation in the wake of the growing national scandal became templates for future criminal justice legislation, including Texas' much-vaunted 2007 probation reforms. And the abolition of Texas' drug task force system significantly shifted the focus of local law enforcement in ways that we couldn't foresee at the time.

So Grits couldn't avoid a moment of nostalgia when this profile on Gupta - who in the wake of the post-Ferguson police accountability maelstrom became an instant national figure -  prominently featured her years working on the Tulia case as a formative experience:

In 2001, a 26-year-old, fresh out of law school, had just started at the NAACP Legal Defense Fund and was looking for a case. When she saw a short documentary about a troubling large-scale drug bust in a tiny Texas town, with facts she thought were "almost too outrageous to believe," as she later put it, Vanita Gupta decided to check things out for herself.

Tulia, Texas, a town of about 5,000 people, was the scene of a large drug bust in 1999 that rounded up more than 10 percent of the city's small black population. A total of 46 people -- mostly black, but a few of them white and in relationships with African-Americans -- were arrested on charges of trafficking cocaine. Local news coverage celebrated the arrests, with one newspaper proclaiming that Tulia's streets had been "cleared of garbage." The defendants were convicted and given extraordinarily lengthy sentences: 300 years. 90 years. 60 years.

The evidence against many of them? Uncorroborated testimony of a single man: a former rodeo cowboy who regularly used racial slurs, whom local police had hired to go undercover and target "street-level" dealers.

After a few days of meetings with family members and a local attorney, Gupta returned to her New York office with so many documents she had to buy an extra suitcase at Walmart. The case would soon grab still more attention. "60 Minutes" deemed the case one of the "worst miscarriages of justice in recent memory." The New York Times described it as a "national symbol of racial injustice." The agent on whose testimony the case rested, who had been named Texas Lawman of the Year in 1999 for his work in Tulia, was called "devious" by a Texas judge, who said he had committed "blatant perjury." The agent was later convicted on aggravated perjury charges. Gov. Rick Perry (R) pardoned most of the Tulia defendants, and Gupta helped the plaintiffs secure a $5 million settlement that required the federally funded drug task force responsible for the arrests to be disbanded.

But Tulia wasn't an isolated incident, Gupta said, it was just the tip of the iceberg. "There is a need for more systemic reform to prevent other Tulias from taking place," she said in a 2004 interview with NYU Law, her alma mater. 

For the record, the Tulia settlement didn't "require" the drug task forces to be disbanded. That happened after a five-year campaign resulting in legislation by Sen. Juan "Chuy" Hinojosa to put the drug task forces under control of the Department of Public Safety. Most of them refused to accept oversight or follow the rules, leaving Gov. Rick Perry little choice but to de-fund them in the end.

Still, Vanita played a pivotal role. And though we haven't communicated in a couple of years, I'd like to think those formative experiences 15 years ago which shaped both of us so significantly still connect us in some small way. I'm really quite proud of her.

Forensic error roundup

A few more tidbits on forensic science reform, Texas' junk science writ, new legislation clarifying its meaning, and the upcoming oral arguments next week rehearing Ex Parte Robbins.

• Maurice Chammah of the Marshall Project wrote a story about HB 3724 codifiying the Court of Criminal Appeals' ruling in Ex Parte Robbins titled "Old Convictions, New Science: Texas tackles debunked forensics."
• Grits had understood that Texas 2013 junk science writ was the only one of its type in the country, but Chammah's piece informed me that California passed similar legislation earlier this year.
• Here's an amicus brief from the Innocence Project of Texas urging the Court of Criminal Appeals to uphold their prior ruling in Ex Parte Robbins holding that bad scientists, not just outmoded science, could provide grounds for habeas corpus relief.
• The Christian Science Monitor this week published an important story titled "When expert testimony isn't: Tainted evidence wreaks havoc in courts, lives."
• Legislation nearing the finish line at the Texas Lege would require all forensic analysts in Texas to obtain licensure in their field by 2019.

Who killed Texas' 'ban-the-box' bill?

After a promising start in the House, "ban the box" legislation - postponing questions about criminal history until later in the hiring process at state agencies - failed even to get a hearing on the senate side this year. Senate Natural Resources and Economic Development Committee Chairman Troy Fraser refused to set it for a hearing. So it wasn't even considered, debated, and voted down, just smothered with a pillow by a single opponent in a back room. That sucks: A really good bill slain by indifference.

Tweaking Texas' junk science habeas writ, and why the state must give more notice when it asks a judge to evict you than to kill you

Legislation codifying the Texas Court of Criminal Appeals' interpretation of Texas' junk science writ (see here and the second item here) has been sent to Gov. Greg Abbott for his signature and a bill to require the government to give notice when setting execution dates has gone awry.

To evaluate  these obscure but important subjects, Grits recorded a brief podcast this afternoon with Mandy Marzullo, the Policy Director for the Texas Defender Service, with whom your correspondent worked closely on a couple of items in the waning days of session. (Some camera-eyed, long-time readers may recall that, in a previous Texas tour, Marzullo helped Grits push to create the indigence rules for the Driver Responsibility surcharge, a laborious mitzvah for which I'll remain eternally grateful.)

Mandy provided excellent summaries of a couple of important pieces of legislation: HB 3724 by Herrero/Whitmire and SB 1071 by Hinojosa/Thompson, neither of which have received much if any attention in the mainstream press. The former bill establishes an important benchmark for courts evaluating junk science claims (see coverage from the Marshall Project) while the latter attempts to establish procedures for notifying lawyers for capital defendants when an execution is scheduled (presently, in some counties, they get less notice than you'd receive if you're being evicted from your apartment).

Give it a listen. Or go here for the audio file in other formats. See a transcript of the interview below the jump.

And then the dust cleared: First look at criminal justice reforms still standing

We find little more clarity on pending Texas criminal justice legislation this morning after the last few days of deadlines. Here are a few, initial highlights:

Innocence commission headed to governor
Ruth McClendon's innocence commission legislation passed the senate, will concur easily in the House, and will soon be headed to the governor. The commission's work will play out over the next 18 months.

Race is on to define scope of Texas' junk science writ
Grits has lots more to say about the passage of HB 3724 by Herrero/Whitmire but suffice it to say for now this legislation codifying the 5-4 result in Ex Parte Robbins was a big win for innocence advocates and justice loving people everywhere. The bill's importance grows as the Texas Court of Criminal Appeals prepares to reconsider their ruling in Robbins at oral arguments on June 3, two days after the legislative session ends. The vote count on the court changed after three members of the majority retired from the court in January, replaced by three former prosecutors. So the legislature and the court are in essence engaged in a race between two branches of government to see who can define the scope of Texas' new junk science writ going forward. One thing's for sure: The Robbins majority based its conclusion in part on legislative history from the bill's original 2013 passage, attempting to interpret the legislators' intent. With the Legislature codifying the Robbins majority view, there can no longer be much debate, it seems to me, about what that body's intent might be regarding habeas and junk science, whether or not Gov. Abbott gives this very-good-bill his blessing, as he absolutely should.

Juvie reforms: Oh Christmas tree, oh Christmas tree ...
In the House, SB 1630 reducing the footprint of state juvenile lockups and shifting inmates to counties was loaded up like a Christmas tree with a variety of ornamental amendments, most prominently a pledge to raise the age of criminal culpability from 17 to 18 on Sept. 1, 2017, but only if the 85th Legislature funds needed transition costs to be identified in an interim study, probably at the Senate Criminal Justice Committee. They also tacked on legislation to expand the role of the TJJD ombudsman and other, smaller but significant amendments. More on this later, no doubt.

Truancy decrim
Truancy decriminalization passed the senate, again, as a substituted House bill. Pray for a House concurrence.

Funding body cameras
The House approved $10 million grant program for body cameras, reminiscent of the $18 million bond issue approved by voters in 2003 to pay for dashcams in police cars, a measure also carried by Sen. Royce West. In Dallas, Police Chief David Brown announced this week that officers who improperly turn off their body cams face severe discipline.

Pushback begins on in-person visitation bill
This was predictable: Jails that switched to video only visitation only don't want to go back to offering in-person visits because it would cost them money. Pray for Gov. Abbott to sign the bill, if this law doesn't take effect now there will be a mad rush of jails shutting down in-person visits hoping to be grandfathered in any 2017 legislation. Complaints expressed in the linked article, btw, seem to ignore the fact that the legislation exempts facilities which have already installed video only facilities.

House leadership nixes surcharge reforms
Nearly all the Driver Responsibility surcharge reform legislation proposed this session is dead, and wasn't helped when the speaker ruled an amendment by Larry Phillips and Sylvester Turner related to the DRP indigence program wasn't germane on a bill related to indigent defense. The bigger remaining reform bill sat just a few captions beyond campus-carry legislation that had Democrats fruitlessly chubbing late into the night (it passed anyway, and as amended was a rather modest and reasonable bill). So surcharge reform seemingly has a House leadership problem: The speaker squelched Phillips' amendment and the Calendars Committee placed the reform bill behind the bill-killing campus carry legislation. These losses were particularly devastating because, for the first session in memory, Senate and the House membership are mostly aware of the problem and widely support reform. Finding votes on the floor for scaling back the program isn't the problem. The barriers to getting something done seems to lie high up the food chain in the lower chamber.

Dotting i's on grand jury reform

The passage of Texas grand jury reform over the weekend was shockingly uneventful, with predicted fireworks never materializing and gutting amendments never proposed. It turned out, the votes were there in the House to pass the bill without bracketing it to large counties or giving judges a choice to use the old system. So, hurrah! But the saga's not quite over.

With the Texas House having passed SB 135 eliminating the pick a pal grand jury system and the Senate amending HB 2150 to do the same thing, a clause encouraging diversity in grand juries is now the sticking point in the feud between Sen. John Whitmire and Rep. Harold Dutton. The senator wants to reinstate the clause and the representative deleted at the behest of the governor on the House floor. The Houston Chronicle's Mike Ware summed things up thusly:

So, with just a week left in the legislative session, the House has passed its version of a Senate bill that does not include the diversity rule. And the Senate has passed a House bill that now includes the rule.

How does that play out?

The House and the Senate will have to confer on both bills, and decide which to support in a final version. Look for some political pushing and shoving on both sides to get that final wording in coming days since Whitmire and Dutton are not seeing eye to eye on much in the waning days of the legislative session.

Whitmire said Monday he has no intention of bending, and wants the diversity provision in the bill. Dutton seems just adamant.

There's actually a simple way out of this without facing another nasty floor fight in the House over this bill. As it turns out, Chairman Dutton is not author of HB 2150, to which grand jury reform was amended after he scuttled his own legislation; Carol Alvarado is. If Sen. Whitmire concurs on SB 135 and she takes HB 2150 to conference, it would be possible to strip out all the extant provisions except Alvarado's original bill and Whitmire's diversity clause. That way, they end up with a complete bill - done as two bills - and in a procedural posture that can actually pass in the short time remaining.

That's my hope. IMO this debate should be over now, and discussion focused only on dotting i's and crossing t's.

UPDATE (5.27): Word now has it that the governor has expressed concern with the diversity clause Whitmire wants, so both bills will go back for concurrence - one with, one without the diversity piece - and presumably the choice will be left up to Gov. Abbott which one becomes law.

NUTHER UPDATE: A deal has been struck between Whitmire and the Governor and HB 2150 will now go to conference committee. It will likely be the version of the bill that's finally passed and signed into law.

In-person-visitation bill nears finish line, grandfathers video-only facilities

Legislation by Rep. Eric Johnson (SB 549) to require most Texas county jails to provide in-person visitation (grandfathering a baker's dozen that built video only facilities in the last few years) has cleared committee in the second chamber this week and will soon become eligible for approval by the full senate. Senate Criminal Justice Committee Chairman John Whitmire is carrying the bill in the senate. A Dallas News editorial last weekend explained why it's urgent that the bill pass this session:

More and more counties will build or retrofit their jails to prevent inmates and their families from being together in the same space.

Why? The main reason is cost. It’s cheaper to require video visits. It cleans up the complication of having non-inmates in and out of the jail.

But there are many things that could lower the cost of incarceration that we don’t do because they are simply wrong. This should be one of them.

As it is, inmates aren’t able to have physical contact with visitors. They must meet on either side of a thick glass window. But the difference between being able to see the real person, to be in the presence of a wife or child, is only describable if you have been denied it.

And remember, this is jail — not prison. These are primarily people behind bars waiting for trial and presumed innocent.

In large counties, more than a month can pass before a trial happens. That’s a long time not to see a loved one in person.

If the Senate fails to pass a bill protecting in-person visitation, it’s possible, even likely, that counties will rush to retrofit their jails to prohibit the practice.

I'd prefer they take out the grandfathering. There haven't been that many new jails built in the last few years, these are mostly facilities which retrofitted their jails to eliminate in-person visitation. Apparently this was needed to secure votes, but that doesn't mean it's a great idea - a bit like closing the barn door after 13 horses have escaped.

See additional coverage from the Longview News Journal.