Bill would expand oversight of state DNA labs

The Texas Forensic Science Commission would gain authority to audit DNA labs around the state if SB 1909 by Sen. Juan "Chuy" Hinojosa becomes law. The bill will be heard today in the Texas Senate Criminal Justice Committee. Audits would include periodic, unannounced on-site inspections and off-site retesting of one or more samples from each laboratory. Audit reports would be made public only after the DNA lab had 30 days to correct any deficiencies and auditors have an opportunity to perform a subsequent evaluation which might

Erecting barriers to in-prison employment

I've already lamented the bipartisan effort to scale back the too-small number of "prison industries" programs employing Texas convicts while they're incarcerated, so rather than separately analyze SB 1169 by state Sen. Robert Nichols, which is up today in the Texas Senate Criminal Justice Committee, I'll just point readers to the item I wrote when the companion bill was heard in the House: "False claim of unfair competition could limit in-prison work programs." Personally, I'd prefer the Legislature expand such programs instead of scale them back.

UPDATE: Sen. Nichols said in laying out the committee substitute that the altered bill will grandfather existing prison industry programs and that restrictions would only apply to new participants. The substitute also expands the number of prisoners who can participate in these programs from 400 - 750. That's definitely an improvement, but I still think it's unwise to erect new barriers to participation in prison industries programs.

"Partial" bail bill aims to reduce "hardship" on defendants

State Sen. Jeff Wentworth has an interesting bill up today in the Texas Senate Criminal Justice Committee - SB 498 - which would allow counties to accept a partial cash bond from pretrial defendants "if the magistrate determines that requiring the defendant to deposit a cash bond or to procure a surety bond in the full amount of bail will impose an unreasonable hardship on the defendant."

Judges can already accomplish the same thing through "personal bonds," but many are loathe to do so for political reasons (i.e., fear of being labeled "soft on crime"). In that climate, giving judges this authority may help reduce needless pretrial incarceration and jail overcrowding without being seen as reducing or eliminating bail. One would expect opposition from the bail bond industry, but perhaps they'll be placated by the fact that "partial" bonds can come from surety bondsmen as well as in cash.

This is a thoughtful, commendable approach: Somebody brought Sen. Wentworth a good bill.

UPDATE: At the hearing, Sen. Wentworth said some counties had done this for years and the bill reacts to an Attorney General's opinion that said the practice was illegal. Judge Raymond Angelini said the same thing has been done in the federal system for many years. He said it would save the county money because defendants could use money they would otherwise spend on bail to pay for an attorney.

Sen. Hinojosa, though, said such savings could be offset if counties then have to pay to find that individual and take them back to jail, whereas right now that burden lies with the bail bondsmen. Judge Angelini said this would be a discretionary system and judges would not be required to use this mechanism.

Sen. Patrick said that California and New Jersey had tried this system and scrapped it, but Judge Angelini said Bexar County had used the system for years without significant problems. Keith Hampton from the Texas Criminal Defense Lawyers Association said a similar program also worked well in Travis County.

Andrea Marsh of the Texas Fair Defense Project said federal data showed defendants with these types of bonds were just as likely to appear in court as defendants with regular surety bonds. (Another witness contradicted her with a dueling study, testifying that the failure-to-appear rate was twice as high for partial-bail participants.) In addition, it's a myth, Marsh said, that bail bondsmen were out there catching large numbers of absconders - 90% of absconders in Houston, she said, are brought in by law enforcement officers, not surety bondsmen.

Lots of opposition signed up against this bill (160 people recorded their opposition without giving testimony!), including prominent judges from across the political spectrum, from Charlie Baird in Austin to Cynthia Kent in Tyler. Chairman Whitmire said he intended to leave the bill pending for the various parties to work on the language.

SCOTUS rolls back police search authority at traffic stops

Here's some good news for liberty-loving drivers:

The US Supreme Court today issued a rare pro-4th Amendment decision to restrict vehicle searches incident to arrest. In a 5-4 ruling, the high court held in Arizona v. Gant that "Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest."

The majority lamented that "Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result."

In a concurring opinion, Justice Scalia wrote that:

Law enforcement officers face a risk of being shot when-ever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car.

Bottom line, said the court: "Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

Though Gant is a relatively narrow ruling, one hopes it portends a renewed commitment to basic Fourth Amendment protections which have been battered and abused by the Court recent years.

RELATED: See the SCOTUSWiki page on the case.

MORE: From Mark Bennett at Defending People, Mark Sherman at the Huffington Post, Debra Weiss at the ABA Journal, Orin Kerr at the Volokh Conspiracy, Gideon at A Public Defender, and Scott Greenfield at Simple Justice.

AND MORE: See a discussion of the case from the TX prosecutors' user forum.

Ethicists say Keller should be removed from bench

One of the signators forwarded me a copy of this document filed yesterday with the Texas Commission on Judicial Conduct by two dozen of the nation's leading judicial ethicists. You can read the full document here:

• Expert declaration regarding alleged misconduct by Judge Sharon Keller to the Texas Commission on Judicial Conduct (pdf)
  

These lawyers and scholars accuse Texas Court of Criminal Appeals Presiding Judge Sharon Keller of failing to maintain impartiality and of "dishonesty" in both her financial reporting and attempts to obtain money from the state to pay for her lawyers. They're particularly critical of Keller's self-described status as a "pro-prosecution" judge.

According to the declaration, referencing the Texas Constitution (Art. 5, sec. 1-a(6)A), "her egregious misconduct 'casts public discredit upon the judiciary [and upon the] administration of justice.'" The ethicists conclude, "These violations are sufficiently serious to require Judge Keller be removed from the bench."

MORE: From Mary Alice Robbins at Texas Lawyer.

Corrupt Dallas deputy facilitated multinational drug ring

Investigation of a corrupt Dallas Sheriff's deputy led to discovery of an international smuggling ring connecting Mexican drug cartels with the Italian mafia, Jason Trahan at the Dallas News reports ("Mexican cartels unloading drugs to Italian mafia," April 21):

"We've got some of the major cartel members established here dealing their wares in Europe," said James Capra, head of the Drug Enforcement Administration's Dallas office.

Experts say warring cartels battered by unprecedented U.S. and Mexican government crackdowns are increasingly looking to Europe as an expansion market. Across the Atlantic, demand for cocaine is high and prices are up. A kilo sold for $20,000 in Dallas is worth up to three times as much overseas, experts say.

Mexican cartel operatives in North Texas "are dealing with Italy, Spain, you name it," he said. "They can operate their logistical center from here and coordinate between Mexico, Central America and Europe."

Italian capos are venturing to North Texas to get in on the action, says one mob expert.

"Places like Houston and Dallas are where these criminal organizations are most likely to invest their money," said Antonio Nicaso, an internationally recognized author and lecturer on Italian organized crime. "This is the right time, with the recession going on."

Dallas has long been a recognized distribution hub for drugs smuggled up the Interstate 35 corridor from Laredo. From here, narcotics head out across the country to Atlanta, Chicago, New England and elsewhere.

The revelation that the cartels are forming alliances with Italian syndicates came last year when the DEA revealed that the Mexican Gulf cartel, which supplies Dallas with cocaine, was working with New York associates of the powerful Italian 'Ndrangheta mafia.

Last August, the DEA arrested a Dallas County jailer accused of tipping off drug dealers to what appeared to be a small-time local narcotics conspiracy. The jailer, Brenda Medina Salinas, has pleaded guilty and is awaiting sentencing. As others pleaded guilty and court documents piled up, it became clear that the drug pipeline in that case reached all the way to Europe and the clandestine world of the Camorra.

Excellent reporting. Be sure to read the whole story. Notably, it was the feds who discovered the corrupt deputy, not any internal checks and balances at the Dallas Sheriff's office - further evidence why an external monitor is needed to investigate law enforcement corruption.

RELATED: See an excellent story from El Proceso, translated into English by Kristin Bricker at The Narcosphere, about Sinaloa cartel chief Joaquin "El Chapo" Guzman who heads a criminal smuggling organization operating in 38 countries.

Bill would allow habeas appeals based on discredited science

Yet another piece of important new innocence-related legislation, SB 1976, passed the Texas Senate yesterday and is headed over to the House. According to the Austin Statesman's Mike Ward:

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant.

“This could help restore someone’s liberty in cases where discredited evidence was used to convict them,” Whitmire said. “I majored in political science, not forensic science, but I know this will improve current law.”

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

Key issue for those appeals: That the new information could not have been known earlier, when the defendant was convicted, because the science used to validate it has since been invalidated.

See also an Innocence Project of Texas fact sheet describing an earlier version of the bill.

Jurors from false confession case call for recorded interrogations

Three jurors from the infamous Richard Danziger case coauthored a column in the Houston Chronicle over the weekend arguing that interrogations should be recorded to give jurors better evidence ("Jurors regret convicting innocent man," April 18):

When we were called to serve as jurors in an Austin sexual assault and murder case, we could never have predicted the ending of this story. Twelve years after we found Richard Danziger guilty of aggravated sexual assault, new DNA evidence revealed that Richard was, in fact, innocent. This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened. ...

Unfortunately, Danziger’s case is not unique. False confessions have played a role in about 25 percent of the 234 DNA exonerations across the country. Whether because of mental incapacity, youth or persuasive threats, DNA evidence proved that each of these people was convicted of a crime he did not commit.

We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue. ...

If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence. While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so. Some things are too important to leave optional, and we think this is one of them. A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.

I'd recently discussed pending legislation to require recording interrogations (HB 4090 by Farrar) which I'm hoping will be voted out of the House Criminal Jurisprudence Committee this week. Meanwhile, Sen. Ellis' somewhat weaker companion bill, SB 116, has yet to receive enough support to make it out of the Senate. Neither bill would exclude information from court under any circumstances, though Rep. Farrar's bill would give a jury instruction if an interrogation wasn't recorded; a long list of exceptions gives judges discretion not to apply the instruction where it's unwarranted.

The Danziger jurors offer an incredibly powerful argument for why both legislative chambers need to act on this legislation pronto. There's nothing partisan or ideological about these bills - they're solely about ensuring juries, judges, and other decisionmakers have access to the best possible evidence on which to base their decisions. It's hard for me to understand why anyone would oppose that.

Texas Senate endorses penalty reduction for juvenile capital murderers

I'm as shocked to see the Texas Senate unanimously endorsed eliminating life without parole for juvenile capital murderers as I was to see Williamson County DA John Bradley testify in favor of the bill in committee. Congratulations to Sen. Juan "Chuy" Hinojosa for getting this landmark legislation through the Legislature's upper chamber. If it earns approval from the House and the Governor, the new law would make juvenile capital offenders eligible for parole (though not entitled to it) after 40 years, so in most cases sometime in their 50s.

I don't track capital sentencing issues closely, but Doc Berman over at Sentencing Law & Policy has written a lot on this topic, see:

• Assailing LWOP for juvie offenders
• Effective examination of juvie LWOP problems in Michigan
• HRW report assails juvie LWOP in California
• Nebraska working to reform juve LWOP sentences
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

A drug dealer registry? One unworkable, bad idea deserves another

Apparently because the sex-offender registration program has been such a glowing success (/snark), Rep. Larry Taylor has proposed HB 4411, creating a "Drug Dealer Registration Program."

I guess we're going to skip over murderers in the Legislature's registry mania and go straight for the dope dealers? This is pure silliness - basically make-work for DPS. Drug dealers' criminal history, after all, is already public information (as is murderers').

The House Public Safety Committee will consider the bill today.

Poor representation in capital cases rewarded with new appointments

With judges now fully empowered, according to the 5th Circuit, to exclude attorneys they don't believe are qualified, there seems to be little excuse for tolerating the kind of attorney performance described by Lise Olsen in a Houston Chronicle piece this morning, "Death row lawyers get paid while messing up," April 20):

Texas lawyers have repeatedly missed deadlines for appeals on behalf of more than a dozen death row inmates in the last two years — yet judges continue to assign life-or-death capital cases and pay hundreds of thousands in fees to those attorneys, a Chronicle records review shows.

Missing deadlines means their clients can be automatically denied constitutionally mandated reviews before their execution. Houston lawyer Jerome Godinich missed three recent federal deadlines, the Chronicle reported in March. One client was executed in February after the federal appeal was filed too late. In March, the 5th Circuit Court of Appeals chastened Godinich for using the same excuse — a malfunctioning after-hours filing machine — for missing another deadline for a man still on death row.

A recent review of the Harris County Auditor’s billing records and district court records shows Godinich remains one of the county’s busiest appointed criminal attorneys, billing for $713,248, including fees for 21 capital cases. He was appointed to handle 1,638 Harris County cases involving 1,400 different defendants from 2006-March 2009, court records show.

He refused comment.

Godinich is not the only attorney to miss death row deadlines. A San Antonio lawyer failed to file four state appeals on time, according to opinions last year by the Texas Court of Criminal Appeals. A Fort Worth lawyer has missed both state and federal deadlines in at least five recent cases, though he sought and was granted more time to prepare on four of them, according to court records reviewed by the Chronicle.

The failure to file such appeals, called writs of habeas corpus, means death row inmates risk missing their last chance to submit new claims of innocence or evidence that could alter their conviction — or death sentence. State judges can be flexible, but federal judges follow tight and sometimes confusing deadlines.

Only one of three Texas lawyers who repeatedly missed such death row deadlines has faced fines or been forced to forgo fees by judges.

There's little doubt representation in capital cases has improved in Texas since the passage of the Fair Defense Act, but accountability mechanisms for excluding poor attorneys clearly haven't yet matured to the point where judges have clear guidance for when it's appropriate to reject or remove attorneys from the appointment list.

RELATED: Gideon has more.

The Judicial Immunity Community: 5th Circuit shuts down attorney suits over court appointments

What happens when judges improperly reject attorneys for the appointment "wheel" to represent indigent clients? Why, nothing, of course. They're judges, you see, so they're immune. Whadidya expect?

Over at Texas Lawyer, John Council brings word of a federal court opinion shutting down litigation over judges' selection of attorneys under the 2001 Fair Defense Act ("5th Circuit rejects suit against judges over court appointments," April 20):

Eight years after the Legislature passed the Texas Fair Defense Act, some lawyers still are not happy with how judges carry out the law, which requires judges quickly to appoint qualified attorneys to represent indigent defendants.

Lawyers get frustrated when judges exclude them from a county's rotating appointment system, and some even sue the county and the jurists. But on April 8, the 5th U.S. Circuit Court of Appeals found that a lawyer couldn't sue Tarrant County and the criminal district court judges hearing felony cases there because the judges denied his application to be put on a list to receive court-appointed cases.

Specifically, in Davis v. Tarrant County, et al. the 5th Circuit decided that when judges create a list of attorneys eligible for court appointments within the county, that is a "judicial act" protected by judicial immunity.

The 5th Circuit also ruled that Tarrant County could not be held liable for the state judges' actions because, again, the jurists were acting in their judicial capacities pursuant to their obligations under the 2001 Fair Defense Act, Article 26.04 of the Texas Code of Criminal Procedure. [See the court's opinion.]

Without having analyzed the opinion, I'll note that the folks whose views I usually trust on these matters sided with the plaintiff on this one:

The Fair Defense Project filed an amicus brief in support of Davis' position that the defendant-judges acted as county policymakers and that Tarrant County should be held liable for the defendant-judges' actions in implementing the appointment policy.

Andrea Marsh, executive director of the Texas Fair Defense Project, disagrees with [the plaintiff's attorney's] assessment that the 5th Circuit's decision undermines the Fair Defense Act.

The Fair Defense Act requires judges to set objective standards in creating an appointment list, such as requiring lawyers to try a certain number of cases before they can be put on an appointment list, Marsh says. But the act also allows judges as a group subjectively to use their discretion when deciding whether lawyers should be on the list, she says.

"The Fair Defense Act says over and over again that counties are responsible for implementing state law for indigent defendants and having policies that comply with the Fair Defense Act," Marsh says. The 5th Circuit focused on the Tarrant County judges' ability to reject individual attorney applications but did not reach whether the judges are liable for the role they play in adopting a procedure for appointments required by the act, she says.

Marsh also believes the 5th Circuit opinion will shut down similar attempts by attorneys to sue counties and judges over the appointment systems. There have been several such suits filed in Texas over the past few years, she says.

I understand Andrea's point that the crux of the Fair Defense Act remains intact and the court did not address whether judges are liable for adopting procedures that compy with the law. But this does seem like a case of judges protecting judges, excusing judicial behavior (rejecting attorneys for reasons besides their qualifications) that flouts the Fair Defense Act in deference to court-created judicial immunity. I don't know the details of the plaintiff's suit beyond what's published in the article, so I can offer no opinion whether this attorney is qualified. But I wonder, if the courts won't allow civil suits when judges violate the Fair Defense Act in their appointments, how can that law be reasonably enforced? And by whom?

RELATED: See more top-notch blogging on indigent defense issues from Mark Bennett in his excellent recent post, "Revisiting the problem of the working poor."

Innocence Project of Texas faces Madoff-spawned budget shortfall

This one hits pretty close to home:

The Innocence Project of Texas faces potential economic oblivion later this year after a foundation whose funds made up the bulk of its income closed its doors due to an infamous Wall Street scandal. In a column in yesterday's Fort Worth Star Telegram, Cory Session, the youngest brother of the late Timothy Cole (who was exonerated posthumously this spring), writes:

The Innocence Project of Texas fights daily for its survival.

Bernie Madoff’s Ponzi scheme robbed the nonprofit of its funding. It will cease to exist after July, unless there is "manna from heaven." The project is operating on fumes and the credit card of one of its volunteers to seek justice for the incarcerated innocent.

On the floor at the Innocence Project office sit boxes of files. Most will never be investigated because there’s no money.

Luckily, [Timothy] Cole’s file was investigated — only it was eight years after he died in prison. The volunteers at the project promised Tim’s mother that they would still seek justice for her son. Their promise resulted in the first posthumous DNA exoneration in Texas.

Often, I have read about millions of dollars being donated to support the arts, which are a vital part of our culture, but I can’t help but wonder why those who "have" are not willing to do the same for the innocent.

The Innocence Project of Texas has a proven track record of numerous exonerations.

Tim Cole will never get to enjoy the arts.

I've been working since last year as the Policy Director for the Innocence Project of Texas, so obviously this unhappy possibility of the group's closure means a great deal to me personally, but so does the potential loss of an organization that's been an important change agent in Texas over the last couple of years.

If you've been following Texas' DNA exonerations on this blog or elsewhere and believe the work of the Innocence Project of Texas is important and needs to continue, I hope you'll consider making a donation to the group, as Kathy and I just did, in Timothy Cole's memory. And thanks, Cory, for your kind words and the helpful plug for the group.

Senate would let judges reduce misnamed 'driver responsibility' fees

It's not nearly a far as I'd like to see them go, but the Texas Senate passed legislation this week to knock off some of the rough edges on Texas' so-called "driver responsibility fee," which has been a complete public policy bust. Reports the Dallas News ("Texas Senate votes to ease surcharges on DWI, other driving violations," April 18):

The Senate voted Friday to revamp the troubled Texas Driver Responsibility Program, under which more than 1 million Texans have been unable or unwilling to pay stiff surcharges on top of their regular fines for driving violations.

Compromise legislation sent to the House would give judges discretion to lower the surcharges – which can run as high as $3,000 for a single driving-while-intoxicated conviction – and also bar the state from assessing surcharges against students and the indigent.

The bill by Sen. Eliot Shapleigh, D-El Paso, would also allow drivers who are slapped with a surcharge to get credit for each year that they have no violations. It was approved, 23-5.

"This is a terrible program that used punitive fines to plug holes in the state budget," the senator said, noting that it became law in 2003 when the Legislature was trying to erase a $10 billion revenue shortfall.

Shapleigh said that of the 1.6 million Texas drivers who are being forced to pay the surcharges, nearly 1.1 million have not paid, and many can't afford to.

"Our founders never intended for debtors' prisons to substitute for an adequate tax system," he said, adding that most lawmakers "now recognize that this program has never worked and needs some fundamental changes."

Shapleigh originally proposed that the program be terminated. But opposition from Republican senators forced him to accept a compromise.

Why not just tattoo their foreheads and be done with it?

Drivers licenses are the wrong place to try to solve unrelated social problems, and here's a good example why.

On Monday, the House Public Safety Committee will hear legislation - HB 1091 by Rep. Tan Parker - that would identify sex offenders as such on their drivers licenses. How will this prevent sex crimes, exactly? Does anyone really think a sex offender will show their victim their personal identification before assaulting or molesting them?

The goal of this bill and much of other legislation aimed at sex offenders these days isn't to protect the public so much as to impose permanent pariah status on those convicted of sex crimes. Many people might agree with that goal, but in practice the labels are sometimes unfairly applied to lesser offenses, and the recent string of DNA exonerations has revealed quite a few actually innocent people who'd been falsely convicted are also harmed by such quasi-official shunning policies.

What's more, as a practical matter, if sex offenders can't find any place to live, work, or even shop, this state-sponsored scarlet letter makes the public less safe because the risk is they'll give up trying to do the right thing and start committing the offenses that got them in trouble in the first place. Why does every store clerk who takes a check need to know somebody is on the sex offender list? IMO that would create more problems than it solves.

Unless you prefer more unlicensed drivers on the road, it's counterproductive to single out unpopular categories of drivers with special denotations on their license that are identifiable by the general public, whether we're talking about sex offenders or immigrants. In both cases the tactic borders on an invitation to needless harassment of licenseholders; indeed, that almost appears to be the point.

Report: Shortchanging indigent defense budgets diminishes constitutional rights

Dr. Tony Fabelo, one of Texas' leading criminal justice policy experts, emails to let us know about a new report, produced by a national committee on which he participated, arguing to spend new resources to shore up public defender systems and corresponding press coverage on NPR.

The report goes into detail about the wide range of ways public defender systems fail poor defendants. Sometimes people don't get lawyers at all. Other times they get a lawyer who is so overworked and underpaid that there's no way the accused can get a real defense.

When that happens, the system ends up with people like Alan Crotzer, a man who spent 24 years in prison for a crime he did not commit. "I was poor and indigent," said Crotzer. "I didn't have no political connections, but I was innocent. And because of that fault in me, I spent more than half of my life in prison."

Crotzer was released when DNA evidence proved his innocence. He has been out for three years, and he's part of the committee that helped produce the report.

The study includes a list of recommendations to fix public defender systems — for example, each state should have a commission to oversee indigent defense. These steps may not be cheap, and it's a difficult time to convince states to spend money.

[Former federal judge Tim] Lewis argues that there's really no choice. "Even in difficult economic times, how much is a constitutional right worth?" he asked. "What price tag do we place on the right to vote? The right to be free from illegal searches and seizures? This is no different."

RELATED: See coverage from the Stand Down Blog.

Bills boosting penalties make statements rather than solve problems

More new, increased criminal penalties are coming down the pike this session, it appears, likely adding to the 2,324 separate felonies Texas already has on the books.

Sen. Jackson's latest oyster enhancement passed out of committee. Trey Martinez-Fischer (and many others) want to boost penalties for owners of dogs who attack children. Meanwhile, Mike Ward reports that computer hacking into government systems may become a felony, even if no data is taken, if a bill by Sen. Kel Seliger that just passed the Senate becomes law.

Dave Montgomery at the Fort Worth Star Telegram has a story about a bill to make theft of livestock a third degree felony no matter how small the animal's value; it passed the Senate on a 29-2 vote. The bill will be another good test case to measure whether increasing criminal penalties deters crime, as evidenced by this exchange on the Senate floor:

Sen. Carlos Uresti, D-San Antonio, questioned whether making a third-degree felony was too much.

“Up to 10 years in prison for one cow?” he asked.

“This will deter rustling,” Seliger said.

The Senate agreed, voting 29-2 for final passage of the measure.

Whether rustling is deterred will be a measurable outcome, so if that turns out not to be the case, I hope Sen. Seliger will step forward a couple of sessions down the line to roll that penalty back. The described boost in the volume of rustling (a trebling in one year, supposedly, to 970 cases of cattle theft) could easily be attributable to the existence of just one or two active theft rings. This is another instance where more vigorous enforcement of laws currently on the books would have more impact that making the laws tuffer.

Indeed, frequently the assumed "deterrence" hoped for by backers of higher penalties simply doesn't pan out in the real world. E.g., last session the Lege boosted penalties for theft of any amount of scrap metal to a felony, only to see the offense rate skyrocket after the new laws were enacted because of rising copper and metal prices. The predictable legislative response: Expand the list of items that trigger an automatic felony charge.

In reality, the penalty class assigned to scrap metal theft didn't have much to do at all with the frequency of the violation, and I'll bet the same is true of cattle rustling.

The House is only now beginning its biennial penalty-hike spree in earnest. On Monday's House calendar, for example, HB 671 by Darby would boost penalties for theft by one category (or "enhance" it, to use the Orwellian capitol euphemism) if the victim is a nonprofit organization. Would this have prevented Bernie Madoff, et. al., from defrauding foundations or other nonprofits? It seems doubtful - this bill is designed to make a statement, not solve a problem.

Another bill on Monday's House calendar, HB 1813 by Vo, would boost penalties for forensic technicians for tampering with government records, based largely on one recent case with no real precedent or reason to believe the problem is widespread. I'm glad if legislators want to address crime lab flaws, but there are a lot more pressing concerns than this.

And that's just a taste of the dozens of bills increasng criminal penalties still moving through various committees in both chambers. I've not been tracking so-called "enhancement" bills this session as closely as in the past, but in almost every instance there are other ways to pursue the same policy goals by using the laws currently on the books, as well as approaches that don't involve the justice system.

'American Violet' portrays landmark TX drug task force scandal

The movie American Violet opens today nationwide, including several Texas locations (see the complete list). The film fictionally depicts an infamous case that occurred here - a large drug bust in Hearne, a small town near Bryan-College Station, back in 2000 - the year after the "Tulia" raid.

Indeed, I just mentioned in the previous post how Sen. Juan "Chuy" Hinojosa had carried legislation in 2001 requiring corroboration for informants in undercover drug stings, a bill that grew directly out of the Tulia and Hearne cases. (A documentary about the Tulia drug stings, coincidentally, recently aired on PBS.) So it's fitting, perhaps, for the movie to open the day after he passed a bill through the Texas Senate extending the corroboration requirement to jailhouse snitches.

I've not seen the film yet, but here are some initial reviews:

• New York Times: Fighting injustice in small-town Texas
• Washington Post: Wronged Mother No Shrinking 'Violet'
• LA Times: 'American Violet'
• Washington Times: Putting a face on the drug war
  
• Rex Reed: Finally, a good movie to see and a true story I can believe in!
• Huffington Post: A powerful movie about race and the drug war
  
• Chicago Tribune: Beyond the Screen: For 'American Violet' inspiration the work isn't over
• Beliefnet.com: Breakthrough Performer: Nicole Beharie
• Atlanta Journal Constitution: Cast members touched by film's story of injustice
• Los Angeles Wave: Innocence Project
• NPR: A Drug War's collateral damage
  
• Hollywood-Chicago.com: Interview with director Tim Disney
  
• Miller-McCune: Taking drug task forces to task

And here's the official trailer:

Eyewitness ID, corroborating jailhouse informants clear Senate

Two positive, if incrementalist pieces of legislation passed the Texas Senate yesterday related to preventing false convictions:

• SB 117 by Ellis requiring law enforcement agencies to adopt written policies related to eyewitness identification procedures, and

• SB 1681 by Hinojosa requiring corroboration for jailhouse informant testimony in order to secure a conviction.

Sen. Ellis' bill, in particular, is a much stronger piece of legislation than the Senate passed last session on the same topic, perhaps bolstered by the large number of exonerated men since then. Faulty eyewitness identifications are the leading cause of false convictions among DNA exonerees, and the Court of Criminal Appeals' Criminal Justice Integrity Unit told the Lege eyewitness ID reform should have the "highest priority of any efforts in the area of wrongful convictions."

Hinojosa's bill builds on legislation he carried several sessions ago requiring corroboration for informant testimony in undercover drug stings (back in 2001 when he chaired the House Criminal Jurisprudence Committee). At the committee hearing on the bill, Hinojosa agreed that, ideally, no one should be convicted based on uncorroborated testimony for which a witness receives official compensation or leniency. But ideals aside, you do what's possible in the legislative process and Hinojosa is extending the corroboration requirement to a significant new category of informants.

Now these bills move to the House, which has yet to move any legislation from the Calendars Committee to the floor (though a few bills have passed on "local" calendars). Both of these are agreed bills whose main barrier to passage at this point may be the calendar, rather than any organized opposition.

An anachronistic debate over 'racial profiling' data

While I was busy on Tuesday at a House Criminal Jurisprudence subcommittee meeting and then watching the House Human Services Committee discuss the Great Eldorado Polygamist Roundup, the Senate Criminal Justice Committee was hearing a bill that I've long supported - SB 1120 by Royce West - creating a central repository of so-called "racial profiling" data generated by law enforcement officers at Texas traffic stops.

Listening to the hearing this afternoon (video is here, starting at the 35:45 mark), I was surprised how this has become a veritable cause celebre for the police unions. They attacked it like a beachfront they were storming. My old pals Charlie Wilkinson of CLEAT, Tom Gaylor of TMPA, and Mark Clark of the Houston Police Officers Union all lined up one after another to rail against the bill.

I've got a lot of history with this legislation, as did most of the folks testifying in opposition. I worked on the original bill requiring the gathering of data and the installation of cameras in police cars when I was Police Accountability Project Director for the ACLU of Texas back in 2001. And for a while, when the data first started coming in, I worked closely with statisticians and staff at the Texas Criminal Justice Coalition to create a private repository there based on annual open records requests, which for years was managed by the indefatigable Molly Totman.

So I got to see up close exactly what the data did and didn't show, and in fact the push for a repository has always been, in part, about the fact that many agencies don't compile reports, respond to open records requests, or produce data in a usable or meaningful format. Some agencies' data was useful and informative, and for others internal discrepancies made it difficult to even perform basic calculations.

The debate over this bill seems like something out of a time capsule, with Gaylor stridently complaining that the purpose of data collection was to "determine if racism exists in law enforcement." But that's not really how the law played out on the ground. As Sen. West got Charlie Wilkinson to admit, nobody can point to a single example of an officer ever disciplined for racial profiling without due process. The fears expressed seemed to ignore the state's 8 years of history with data collection that generated none of the ill effects they predicted.

To further demonstrate the odd, time-capsule quality of this debate, here's something I wrote about a similar bill two years ago that almost exactly mirrors what I'm inspired to write in reaction to Gaylor and Clark:

We've learned a lot from this data over the years since police began to collect it. Before departments gathered racial profiling data in Texas, it was common for police to claim there were not disparities in how many minorities received tickets compared to white people, or how often they were subjected to searches. The existence of those disparities has been confirmed by the data once and for all, and now the debate has shifted to the CAUSE of the disparities and how to reduce them. That change alone to me was worth the price of admission, inching us one step closer to admitting and dealing with race in law enforcement in a more honest way.

But a funny thing happened along the way in that debate - it turned out oversearching in Texas isn't only about race. Indeed, often racial disparities aren't the biggest ones. Some departments have a policy of searching more often at traffic stops generally in ways that affect everyone, white folks included. As I wrote based on Molly's report two years ago, in

My hometown of Tyler, for example in Northeast Texas, [police] searched blacks 2.6 times more than whites, compared to the town of Longview down the road which searched blacks 2.7 times more often. Sounds pretty similar, right? Well, check out the numbers as a percentage of traffic stops:

How many Tyler/Longview drivers were searched
as a percentage of local traffic stops by race

	Blacks	Latino	Anglo
Tyler PD	3.3%	3.1%	1.3%
Longview PD	19.6%	9.8%	7.2%

So once again, while both department's search patterns exhibit racial disparties, as a percentage of total stops, Longview is engaging in MANY more unnecessary searches than the Tyler PD. Indeed, whether a department has a policy of oversearching is a more significant factor than race: a white driver in Longview is more than twice as likely to be searched at a traffic stop as a black driver in Tyler.

To me, the debate over racial profiling isn't about accusing cops of racism, it's about treating people fairly and giving the public and departments tools to measure police practices to see if they're fair. These stats show that disparate treatment at traffic stops is about more than just race -- it's about documenting police practices that are eroding the Fourth Amendment for everybody.

I swear I was about to write the same thing, including the hometown example, before having a moment of deja vu and retrieving this item from 2007. Obviously, though, those arguments aren't enough because the legislation didn't pass and the opposition to the bill is more strident and focused than ever.

So something else is needed. Perhaps a mea culpa will help: We mis-framed this bill from the beginning. It should have never been pitched as "racial profiling data," but as "traffic stop data." It's supervisory functions should have been more strongly emphasized, and its goal should have been firmly stated as bolstering the Fourth Amendment.

Indeed, the data from Sen. West's SB 1074 in 2001 gave supervisors more information about what their officers did in the field - both in terms of numbers on the form and video from new dashcams in police cars - than they'd ever had before. But the racial angle has been used by Gaylor and Co. to drum up populist fervor among their ranks to try to convince their members that Sen. West and the bill's supporters were out to pillory them as racist.

That's really a mis-characterization. In retrospect, having seen up close what the data does and doesn't prove, I'd argue the data is useless for "proving racism" and anyone who has that as a goal will want to find another path to pursue.

That said, this information tells us more about basic police practices at traffic stops than we ever knew before, in particular honing in sharper focus on the practice of "consent searches," where disparities were a) often higher than disparities among drivers stopped and b) were a function of officers' discretion as opposed to a reaction to probable cause.

Some agencies began requiring written consent at traffic stops of their own accord after the first couple of rounds of data came out, and in 2005 the Legislature passed (but Governor Perry vetoed) a bill to require written or recorded consent for police to search at traffic stops, largely as a result of the data generated by this bill.

Gaylor objected to centralizing the data in a repository because it would take it out of context, but Longview's high numbers would have no context if they couldn't be compared to other, similar communities. Tom's got it exactly backward.

Bottom line: So-called "racial profiling" data in Texas is not identifiable by officer and is only reported in aggregate numbers. For that reason, it's useless for "attacking" individual officers, as Gaylor and Clark alleged, but instead puts pressure on supervisors to justify their use of resources. Why would Longview search so many of its citizens? This calls into question how management prioritizes its officers' time and focus, not any individual officer's decisions.

The key change to the data gathered under the bill would require officers to check off whether they find contraband or not when they perform consent searches. That would actually give agencies a performance measure to tell whether these tactics were justified. Would Longview continue to search at so high a rate if they could measure how many more cases were made? This would give the department another tool to evaluate that choice in an objective, evidence-based fashion.

Sen. West's SB 1074 back in 2001 was a better bill than we knew at the time, and for different reasons. His SB 1120 builds on what worked best in that 2001 legislation while, to my mind, entirely avoiding the misuses that his detractors insist will inevitably happen. Another example of interest groups opposing a reform more out of habit than reason.