Major development: Business lobby backs criminal justice reforms

The Austin Statesman's Mike Ward points to a major development on the criminal justice reform front: The entry of the Texas Association of Business, a powerful lobby representing some of the state's largest employers, will be backing a reform agenda on criminal justice this session. Reported Ward ("Big-business lobby enters fray on criminal justice reforms," Jan. 15):

In a significant shift in lobbying clout, Texas’ most powerful business group has decided to make criminal-justice reforms a key focus of its priorities for legislative action, seeking ways to spend taxpayer money more efficiently and to improve the state’s economic future.

Bill Hammond, president of the Texas Association of Business, said the group plans to push to expand successful rehabilitation and community-based corrections programs; to change Texas’ drug-sentencing laws to put more low-level offenders in local treatment programs and reduce penalties for small amounts of drugs; and to modify state licensing laws that keep some ex-convicts from ever becoming certified for various trades.

“We’re sending too many people to the slammer,” Hammond said. “The taxpayers and the business community are both being harmed.”

On Wednesday, the business group will meet to plan its strategy to persuade the Legislature to enact changes that Hammond said are designed to keep more low-level, nonviolent lawbreakers on probation and in treatment and rehabilitation programs in their communities, “rather than sending them all to Huntsville.”

This would have been unthinkable a decade ago and reflects the growing realization among fiscal hawks that Texas' corrections costs have grown at rates far in excess of other government spending. Here's TAB president Bill Hammond elaborating further on the group's new position:

“TAB supports criminal justice reforms from previous legislative sessions and ongoing efforts to improve public safety, reduce the rate of recidivism, and decrease prison costs,” the association states in its legislative wish-list this year. “Such reforms include, but are not limited to, finding cost-effective alternatives to incarceration through the implementation of enhanced probation programs.”

The bottom line, Hammond said, “is that the current system is ineffective. It doesn’t work.”

“We don’t pretend to be experts at criminal justice, but we’re for good public policy,” he said, noting that the association supports keeping Texas competitive in attracting new business in coming years. That should involve reforms to the current corrections system, he said.

In its legislative platform, the TAB notes that “while the daily cost of probation is $2.92 per person, only $1.40 of which comes from taxpayers’ dollars, it takes $50.79 per day for taxpayers to hold a single inmate in prison. That comes to a total of $18,000 per inmate, per year, with Texas currently housing over 150,000 prisoners.”

Congratulations to Hammond, TAB, and also the Texas Public Policy Foundation, which has been working hard to convince business leaders they have a dog in this fight. This is an exciting development. TAB brings every bit as much clout to the Lege as traditional opponents of reform like prosecutors and police unions. Though one hesitates to begin counting chickens, it's possible we'll look back in just a few years and see this as a important tuning point. Grits certainly hopes so.

Conservatives critique overcriminalization and the environment, but can't have it both ways

The Texas Public Policy Foundation last month published a new report (pdf) by Marc Levin and Vikrant Reddy focused on the criminalization of business regulation, particularly as it relates to environmental rules. The Washington Examiner's Beltway Confidential blog item on the topic led this way:

Five Gulf Coast states have over 1,000 laws that allow prosecutors to target people with criminal sanctions over rather minor infractions related to the environment and outdoor living, a new study shows, even in cases where the accused did not cause any harm or knowingly break the law.

“The labyrinth of vague offenses fails to put individuals and businesses on notice as to what conduct is prohibited, leaving those in such industries with the unenviable choice of curtailing productive, job-creating economic activity or taking a risk of being branded a criminal,” Texas Public Policy Foundation analyst Vikrant Redd said in a statement on his organization’s report.

The report indicates that this opaque process tends to empower bureaucrats, with many “offenses created by rulemaking pursuant to blanket statutes that permit agencies to effectively create crimes,” in addition to criminal regulations pertaining to hunting, fishing, or agriculture.

Texans can commit up to 11 felonies related to harvesting oysters, according to TPPF.

Long-time Grits readers will recall I've had fun at legislators' expense over the eleven oyster-related felonies, but the issue of overcriminalization and the usurpation of business regulation by criminal law is no laughing matter. Among Gulf Coast states, Texas has the second most environmental crimes on the books behind Louisiana, reported TPPF, with 263 compared to 286 for the Bayou State, 185 in Alabama, 107 in Florida and 94 in Mississippi.

Among other suggestions, Levin and Reddy call for strengthening mens rea or the element of criminal intent in environmental statutes as opposed to strict liability crimes that don't consider the actors' intentions, and that's an idea that IMO applies well beyond environmental crimes. They're concerned that "some statutes require mere criminal negligence rather than intentional, knowing, or reckless conduct for culpability. In effect, this is often the same thing as eviscerating the mens rea requirement altogether." For example, "In Louisiana alone, over one hundred offenses that relate to hunting, fishing and wildlife could result in imprisonment — and virtually none of these offenses carry a mens rea requirement."

That said, while I agree with the thrust of the report, there's an irony at TPPF being the messenger. The group over the years backed tort reform measures and argued to reduce business regulation, and the neutering of those traditional means of redress has contributed greatly to the move toward criminalization of what were traditionally mere regulatory offenses or torts. Conservatives can't have it both ways, arguing against both criminal liability and non-criminal enforcement mechanisms, at least without giving off the impression that they just want to give business a pass for behavior that harms others. Extreme tort reform and anti-regulation ideology among conservatives arguably have been the greatest contributors to overcriminalization in this area, because real-world harms still occur and traditional avenues of redress have been gutted. In that context, criminal penalties are the only vehicle that remains. While Levin, Reddy and TPPF's Center for Effective Justice in general have adopted a more nuanced approach to these questions than most conservative commentators, it's also true that these are subjects where the conservative movement has not quite figured where it will ultimately land; they know what they're against but it's unclear what solutions they favor. Grits applauds TPPF, though, for its willingness to engage in those debates and largely agree with their criticisms of overcriminalization articulated in the report.

Fewer members on Corrections Committee, but who will be chair?

Looking at the new Texas House rules, I noticed a couple of changes that may interest Grits readers: The size of the Corrections Committee will be reduced from nine to seven members, and the Government Efficiency and Reform Committee has been given control of "open government matters, including open records and open meetings," which in the past had fallen under the purview of State Affairs.

The $64 question remains, "Who will chair criminal-justice related committees in the House?" The chairs of Corrections, Criminal Jurisprudence as well as Homeland Security and Public Safety all departed from the Legislature after last term, leaving a gaping hole in leadership on these topics in the lower chamber.

Southern states pushing de-incarceration envelope

Recent legislation in other southern states offer possibilities for sentencing reform that perhaps could be replicated by the 83rd Texas Legislature if they can muster the will to reduce corrections spending. In South Carolina, reported The State, the Department of Probation, Parole and Pardon Services was previously "focused on punishing offenders who did not follow the rules. Sentencing reform forced the department to reward offenders who did follow the rules. Now, offenders can reduce their supervision by 20 days for every month that they follow the rules. A shorter sentence means the offender pays less money in supervision fees. In some cases, he or she even earns a refund."

The Palmetto State reforms also focused on risk assessment and better matching of services to risks:

The probation department now assesses all offenders to determine their risk for reoffending. If an offender has no family support, the department will try to get that person involved in a church, if they are religious, or in some other support group for encouragement.

In Spartanburg County, probation officers doubled the rate of youthful offenders completing probation successfully just by assigning each one a counselor, according to Jeff Harmon, the agency’s Spartanburg agent in charge.

The department still punishes offenders. But prison is now the last option.

Now, if offenders break the rules, they could have to pick up trash on the highway, report to their probation officers more frequently or spend a weekend in jail – what Department of Corrections director Bill Byars refers to as “a refresher course.”

“Frankly, we have had to relearn the business of probation and parole,” said Kela E. Thomas, the probation department’s director.

It appears to be working.

In 2012, the agency revoked the probations of 3,323 former inmates – 1,461 fewer than in 2010.

The changes in South Carolina  have already shifted the mix of prisoners incarcerated in the state:

Before sentencing reform, the prison population was spilt about 50-50 between violent and nonviolent inmates. Today, 62 percent of inmates are incarcerated for violent offenses, said John Carmichael, the Corrections Department’s deputy director for programs and services.

That shift has allowed the department to focus more of its resources on its most dangerous inmates.

Incarcerating fewer nonviolent inmates means that lower security prisons are operating at only 75 percent to 80 percent of their capacity. That has allowed the Corrections Department to shift resources to higher security prisons, which are operating at 94 percent to 97 percent of their capacity.

“We’re trying to make them safer,” Carmichael said.

In Texas, offenders convicted of violent offenses make up 55% of inmates, compared to 62% in post-reform South Carolina.

Meanwhile, via this AP story I learned of Georgia's Special Council on Criminal Justice Reform, which produced this report (pdf) suggesting various de-incarceration initiatives. According to AP, "There are new penalty provisions for certain crimes, and the elements of other crimes have changed so that some that used to be felonies are now misdemeanors." The Peach State also reduced the level of supervision for successful probationers: "Probationers are put on an administrative caseload after two years, and the council's report says only 18 percent of those unsupervised probationers are rearrested, as opposed to 60 percent of active probationers."

Read more here: http://www.thestate.com/2013/01/13/2587969/how-sentencing-reform-is-saving.html#storylink=c

Read more here: http://www.thestate.com/2013/01/13/2587969/how-sentencing-reform-is-saving.html#storylink=cpy

Prosecution failed to dispute expert testimony at habeas hearing on arson science

Dallas News editorialist Sharon Grigsby has a blog post about Ed Graf's habeas hearing in Waco last week, complementing Waco Tribune-Herald coverage over the weekend. Grigsby, who was childhood friends with Graf's sister, pointed to similarities between expert testimony in Graf's habeas appeal and the expert conclusions in the Todd Willingham case, providing links to documentation from Graf's fire experts and the Craig  Beyler report debunking arson investigator testimony used to convict Willingham. As Grits suggested last week, both cases involved the use of arson "indicators" that are no longer considered valid in the field, and in both cases the bulk of the probative evidence was hauled  off to the dump before it could even be examined. From Grigsby's post:

The arson investigators at the time had little understanding about, among other things, how fire burns. Bluntly, they seemed clueless about the science involved. One example: The arson investigator thought fire can burn straight down, through a plywood floor, when that’s just not the case.

Rodger [Jones], who has written a lot of editorials about the Cameron Todd Willingham case, says he sees remarkable similarities between the Graf reports and reports done on the controversial Willingham case. The initial arson investigators in Willingham’s case had the same poor grasp of the basics of fire science as they did in the Graf case.

In my opinion, the new analysis in the Graf case indicates the same use of “old wives’ tales” used by arson investigators in reaching their conclusions.

Notably, reported the Tribune-Herald, the McLennan County District Attorney declined to put on his own expert witness at the habeas hearing on Friday, leaving testimony by the two experts brought by Graf's legal team unrebutted. (In the interest of full disclosure, Graf's attorneys work with Grits' employers at the Innocence Project of Texas, though I have no knowledge of the case beyond published news reports.) Without the arson investigator testimony, Waco attorney Walter "Skip" Reaves told the paper, “I feel at minimum we will get a new trial out of (the hearing), and if we do, then I don’t think they’ll re-try it because I don’t think there is any evidence of arson.” If that prediction sounds optimistic, it's certainly bolstered by the fact that the McLennan DA failed to dispute the validity of expert testimony at the habeas hearing.

These old arson cases present a challenge for the Court of Criminal Appeals, which has struggled in determining whether convictions based on false forensic testimony may receive habeas corpus relief. However, without the culture-war circus surrounding capital punishment in the Willingham saga, cases like Graf's allow for a more thoughtful consideration of how to secure justice when junk science is presented as fact in the courtroom.

Initial thoughts on draft criminal justice budgets: Fables from La-la land

Let's take a first-cut look at implications for the criminal justice system in the Texas House and Senate draft budgets released yesterday amidst promises of tax cuts from state officials. (Go here for links to both budgets; the criminal justice/public safety budgets are in Article V.)

First things first, both the House and Senate budgets failed to restore funding cut last session from the prison healthcare budget, despite the fact that the Legislative Budget Board had to agree to additional funding mid-biennium in order to keep the UT Medical Branch in Galveston as their main provider. Both budgeted not only less than the requested amount but lower than the 2013 levels set by the 83rd Legislature for hospital and clinical care, pharmacy, and psychiatric care. That cannot stand at current prison population levels.

Slight cuts were suggested for local probation departments, ignoring TDCJ's request for more funds and probation directors' request to help with rising health insurance costs. Coupled with the suggestion that the state will spend less in 2014 and 2015 to "incarcerate felons" than it did in 2013 - despite rising healthcare and food costs and guard shortages stemming from low pay - these budget figures appear to come straight out of la la land. Both budgets zeroed out TDCJ's line item for facilities maintenance, a suggestion that fails to pass the laugh test. (The agency had budgeted $81 million for maintenance this biennium and requested $97 million for the next one.) Overall, TDCJ would receive roughly $65 million per year less in the next biennium than was budgeted for 2013, a figure that won't be tenable unless something is done to reduce the overall prison population.

The newly formed Texas Juvenile Justice Department would see its budget slashed by about $30 million per year compared to 2013 under both proposed budgets, with the cuts coming from mostly from state-operated secure facilities. The budget substantially reduced the allocation for "basic supervision" by juvenile probation departments, but added the money back in under a new line item titled "Pre- and Post-Adjudication Facilities." Funds for halfway houses and "general rehabilitation treatment" would decline slightly.

Both budgets would slash the Department of Public Safety's budget by around half a billion dollars over the biennium compared to the last one, ignoring recent calls for trooper pay raises. The agency's request for additional crime lab funding to mitigate growing backlogs was also ignored.

The Indigent Defense Commission's request for additional funds to cover unfunded mandates on counties from the 2001 Fair Defense Act was rebuffed in both budgets.

Bottom line: What's been proposed here are not realistic suggestions based on historical costs and caseloads. Grits does believe there are ways to cut public safety and corrections spending, particularly by funding community based diversion programs to offset reductions in much-more expensive incarceration. But these budgets don't reduce spending through smart, strategic thinking but by thoughtlessly hacking at topline numbers without a realistic implementation plan.

Obviously we're at the beginning of the process and budgets at the end of the session will look much different, one would imagine, than these initial proposals. It must be said, however, on the criminal justice front they're not off to an inspiring start.

Habeas writ challenges infamous Austin 'ritual abuse' case

The Austin Chronicle and the Austin Statesman both have coverage of a substantive habeas appeal filed by Austin attorney Keith Hampton on behalf of Fran Keller, who along with her husband was convicted two decades ago of ritual sexual abuse of children at a daycare they operated. From the Chronicle:

the Kellers were among hundreds of daycare worker across the country who in the Eighties and early Nineties were accused of being part of “satanic cults” that abused children placed in daycare. The most notorious case was that involving McMartin Preschool in California where daycare workers were charged with hundreds of counts of abuse in a criminal case that lasted more than a decade; the McMartin defendants were finally cleared of any wrongdoing.

Although Christy [Chaviers, who made the initial outcry] ultimately testified in court that nothing bad ever happened to her at the Kellers, the state had several other pieces of evidence upon which to make its case: the testimony of a young emergency room doctor who examined Christy and opined that lacerations to her hymen appeared consistent with sexual abuse; testimony from Austin Police who said they'd used a helicopter armed with an infrared device to determine that graves in a small private cemetery had been disturbed – consistent with stories the children told about rituals the Kellers would perform there; and the opinion of Randy Noblitt, a Dallas psychologist with an alleged expertise in ritual abuse.

According to an 108-page writ filed today by veteran Austin defense attorney Keith Hampton, those key pieces of evidence have now been discredited. Keller's wrongful conviction was based on "medical observations now repudiated, a recanting witnesses' false confession, child fantasies, a quack 'expert' in imaginary satanic ritual abuse, false evidence from the police … the suppression of exculpatory evidence, and an investigation virtually certain to result in false allegations of abuse by children," reads the appeal memorandum. Indeed, the faulty medical evidence – based on science that has evolved since 1991, when the alleged crime took place – and evidence that Austin Police withheld, not only from the defense but also from prosecutors, key evidence related to the graveyard, are issues that were first raised by the Chronicle in a reinvestigation of the Keller case, "Believing the Children," published on March 27, 2009.

The "expert" who testified regarding ritual sexual abuse turned out to be something of a nutjob, as his later writings and advocacy on the subject attest. From the Statesman:

The appeal also took strong exception to the expert testimony regarding ritual abuse by Noblitt, a Dallas-area psychologist now living in California whose unreliable opinions deprived Fran Keller of a fair trial, Hampton said.

At the Kellers’ 1992 trial, defense lawyers argued that the children’s tales were too far-fetched to be believed, but Noblitt testified that bizarre rituals can be used by sex abusers to intimidate and control their victims.

The appeal accused Noblitt of parlaying his testimony into a business opportunity, giving lectures and writing a book on the evils of ritual abuse, and pointed to a Noblitt-sponsored 1995 conference as providing an eye-opening look into his world view. The conference included speakers who discussed the FBI’s cover-up of a satanic cult in Nebraska that had White House ties, the existence of more than 500 satanic cults conducting eight sacrificial murders a year in New York City, and the revelation that then-President Bill Clinton was the anti-Christ, the appeal said.

Meanwhile, the ER doctor whose testimony most directly evinced sexual abuse now says he was wrong, again from the Chronicle:

[Dr. Michael] Mouw told us in 2009 that he was wrong, and that he learned later that what he saw was likely not an injury. In an affidavit filed with Keller's writ, Mouw elaborates on why he believed then that Christy had been abused, and why he does not now believe that she was. "Years after the trial, I attended a medical seminar which included a slide presentation of hymens with normal variants," Mouw wrote. "One slide of a normal hymen was so similar to what I had observed when I examined Christy, I realized I had mistakenly identified normal discontinuity at those locations as lacerations. This was new information to me. While my testimony was based on my good-faith belief at that time, I now realize my conclusion is not scientifically or medically valid, and that I was mistaken."

Mouw's about-face, based on medical advancements, is key to Keller's appeal. The Court of Criminal Appeals has recently decided at least two cases that hinge on evolved medical opinions. In one, the court ruled that a mere change of heart by a medical professional was not enough to trigger appellate relief. But in the Cathy Lynn Henderson case, also from Travis County, the court has granted Henderson a new trial, based on the idea that "new" science demonstrated that the head injury suffered by a three-month-old left in her care could easily have been an accident. 

The writ also alleges a Brady violation based on police testimony that several graves had been disturbed in a small cemetery where they alleged some of the abuse had occurred. But they failed to reveal to either prosecutors or the jury that the cemetery's caretaker offered a "perfectly innocent explanation for the 'disturbed' grave sites." "Moreover, because police allowed the state to put on evidence that 'acted at trial as official affirmation of the child fantasies' also amounts to the 'use of false or misleading evidence to convict,' a violation of Keller's due process rights," according to the writ.

Hampton argued that "The wrongful imprisonment of Fran Keller is the result of forces which arise only in somewhat unique social and psychological circumstances. A 21st century court ought to be able to recognize a 20th century witch-hunt, and render justice accordingly.""

Grits can vividly remember the breathless, circus-like media coverage of this case, which did indeed lead to a witch hunt atmosphere. Gary Cartwright of Texas Monthly was the first journalist to comprehensively question the Kellers' convictions, reporting in 1994 that "Much of what the children said – or, more accurately, what the parents reported they said – is either demonstrably false or inherently unbelievable." Though he could not know at the time of Noblitt's quackery, that the ER doctor would recant, nor of the exculpatory evidence about the gravesites allegedly withheld from the defense, Cartwright showed that the children's testimony was at a minimum fanciful and unreliable, encouraged by therapists and police touting dubious claims about the kids (one therapist insisted the central witness in the case had eight personalities) who had personal and professional stakes in promoting the meme of Satanic ritual abuse.

Concluded Cartwright, "What happened at Fran’s Day Care Center was a tragedy. If the Kellers did even a fraction of what is alleged, they got what they deserved. If they didn't, then the tragedy is compounded beyond measure, because the children believe that the stories of humiliation and torture that they were encouraged to tell are real and also because innocent people are in prison, their lives and the lives of their families wrecked. Stories of unimaginable horrors have been told and repeated and refined so many times by parents, therapists, and law enforcement authorities – told with such passion and conviction that they are permanently planted in these children's minds. In that respect, some form of ritual abuse obviously took place."

Knowing what we do now about the evidence Cartwright didn't dispute - particularly the revised medical testimony and alleged Brady violation - it's hard to imagine a jury would convict today, but that doesn't ensure the Kellers will get relief from the Court of Criminal Appeals. The court's recent rulings on whether erroneous scientific testimony justifies habeas relief have been all over the map, however the additional claims in the writ may well be enough to tip the scale in the Kellers' favor. As Cartwright suggested nearly two decades ago, in hindsight the main "ritual abuse" in this episode appears to have been  perpetrated by the state and its agents.

Austin PD arrest, use of force rates much higher than comparably sized towns

The Statesman on Sunday published a lengthy feature with several interesting sidebars related to use of force by Austin PD officers, which has increased in frequency over the last three years even as the number of arrests declined.

• Austin police department's use of force climbing
• Citizen videotaping adds force to the debate
• A week's worth of police force
• Use of force when subjects are under influence of alcohol or drugs

The number of arrests "dropped 15 percent between 2009 and 2011," reported the paper, from around 69,000 to under 59,000, while the number of use of force incidents increased. The result, as depicted in the graph on the right, is that the percentage of arrests involving use of force has increased.

By contrast, reported the paper, "In Portland, Ore., police use of force incidents have plunged steeply in recent years. In Sacramento, Calif., the number of such incidents by police has remained steady the past three years. In Charlotte, N.C., Seattle and Fort Worth, incidents of force use by police have either stayed steady or dropped."

Indeed, Austin's high use of force rates appear to be an outlier compared to similarly sized cities. "In 2011, with a population roughly comparable to Austin, Fort Worth’s police department reported 288 uses of force; Sacramento showed 216 and Charlotte had 471. Austin police reported nearly 1,700 incidents over the same period." As is typical, a small number of officers accounted for a disproportionate share of use of force incidents:

the paper’s review showed a handful of Austin police officers consistently use force at a rate considerably higher than most. Officers who used force between 2009 and 2011 filed an average of three such reports per year.

But 21 Austin police officers each reported using force 40 or more times in the past 3½ years. Six of the officers had single years during which they reported 30 or more force incidents; one filed 71 use of force reports from the beginning of 2009 to mid-2012. Each worked primarily in the entertainment district.

So if 21 (out of 1,718 sworn) officers used force 40 or more times, that's (at least) 840 out of roughly 4,600 incidents, or 1.2% of officers accounting for around one in five use of force incidents. In 2011, according to the paper, 165 officers, nearly 10% of sworn members of the department, used force six or more times. The majority of APD officers filed no use of force reports that year at all.

Another anomaly that one expert said could raise a "red flag": "Of the 4,600 subjects who had force used against them by Austin police since 2009, 699 — about 1 in 7 — weren’t subsequently arrested."

Taser use accounts for a significant proportion of the increase: "While police use of stun guns is up 80 percent since 2009, officers’ use of batons, pepper spray and dogs have remained relatively steady. Together, the weapons are used in about one-third of all force incidents."

The feature story also included an interesting tidbit related to eye-poppingly high numbers of arrests by Austin PD compared to similarly sized cities.

Austin police report arresting people far more often than officers in similarly sized cities. In Portland, police make about 30,000 arrests every year; Fort Worth’s officers arrest about 38,000 annually, Charlotte about 27,000.

Last year, by comparison, Austin police reported nearly 59,000 arrests — 160 every day. In 2009, the number was 69,000.

Put another way, Austin arrests equal about 7.5 percent of its total population — double the ratio in Charlotte and 50 percent higher than in Portland and Sacramento. The rate is higher even than Dallas’s 5.9 percent.

A subset of those arrests are of frequent flyers, but then that's true in the other towns as well. I was aware APD made many more DWI arrests based on unsubstantiated charges than other Texas jurisdictions, but I'm surprised the overall arrest numbers are that much higher than elsewhere. APD files about 7,000 DWI cases per year, the Statesman reported in 2011, with roughly 30% of them dismissed compared to less than 5% in Fort Worth. APD also makes around 6,000 public intoxication arrests each year, said the paper, which former District Attorney candidate Mindy Montford said is improperly used as "a crowd control technique." (There was no information in the report regarding how many of those cases are dismissed.) "Citywide, the number of intoxicated subjects on whom officers used force doubled between 2009 and 2011."

These data in general raise more questions than they answer: Why does APD arrest Austinites at greater rates than other jurisdictions? Why have arrest numbers declined even as the population grew? How does the ratio of arrests to dismissals compare to those other jurisdictions? Why has the proportion of use of force incidents increased and why is it so much higher than other, comparable jurisdictions? Are drunks becoming  more aggressive or has departmental culture about how to handle them changed? Are Tasers being used in episodes (like this one) where the suspect posed no threat? These data invite speculation on such questions but cannot supply answers. They're certainly interesting questions, though.

Tuff on crime getting tough on Waco taxpayers

In McLennan County, judges and county officials spoke last week with unusual candor about the economic costs of District Attorney Abel Reyna's "tuff-on-crime" approach to plea bargaining, which the Waco Tribune Herald reported ("Judges overhaul crowded dockets due to crowded jails," Jan. 13) has resulted in "unnecessary delays and ease jail overcrowding." The county's two criminal district judges have taken measures to speed up the plea bargaining process. They're concerned with the number of defendants "riding the docket," or refusing to accept a quick plea bargain, in part because the new District Attorney Abel Reyna engages in overcharging. “As a matter of policy, prosecutors need to be making their best offer first,” [Judge Matt] Johnson said. “Because if they make their worst offer first, people are going to ride the docket.” A defense attorney quoted in the story said, “When Mr. Reyna took office, the offers that had historically been at one level are now up three to four times on every type of case.” The judges, though, not to mention county commissioners who must pay for the jail costs, want the DA to negotiate more cases more quickly, and to consider the costs of being "tough.". Reported the Trib:

The changes come a week after McLennan County commissioners discussed budget woes fueled in recent years by a growing jail population that hovered this past week around 1,300 inmates.

Based on current trends, the county may spend $5 million this year to house overflow inmates from the McLennan County Jail, which is $2 million more than budgeted. That could deplete county contingency funds or dictate cuts in other areas, county officials warned.

County Judge Scott Felton told commissioners if citizens elected District Attorney Reyna and new Sheriff Parnell McNamara because they embraced their tough-on-crime platforms, they must be willing to pay for the results, including possible tax increases to pay for jail operations.

A staff editorial accompanying the story opened describing how:

McLennan County Judge Scott Felton during a county commissioners meeting laid bare the escalating, out-of-control jail costs draining county coffers. The numbers presented were shocking: One of every four dollars is now being spent to house and care for inmates — up from $900,000 in fiscal year 2009 and destined to hit as much as $5.5 million this fiscal year.

Felton’s transparency in a court long known as less than forthcoming was not only appreciated but necessary. The commissioners court before Felton’s arrival seldom went into such depth in open session about fiscal challenges facing it and the public. Felton’s approach, however, just might get us all working on the same page to solve this latest crisis impacting our jail system.

“This is not a fiscal cliff but it sure is a rough hill we are going on right now,” Felton said. “One of the biggest elephants in the room is that jail population and it has the biggest affect on our fund balance.”

Commissioner Ben Perry compared inmate statistics from Bell and Brazos counties, which average about 600 per day. McLennan County, however, houses between 1,100 and 1,300 per day — and pays a hefty price to do so. Brazos County had 12,000 inmates in 2012; Bell County, 19,088. McLennan County last year cared for an astonishing 36,000 inmates.

The paper opined that, "at least part of the problem results from officials who, acting on the message voters sent them, are tough on crime. Taxpayers must understand that if we want criminals aggressively prosecuted and locked up, there’s a very real price to pay."

This has been going on for a while. Last year the county raised taxes and reduced spending on health care to pay for for additional jail and prosecution costs, and it appears likely they'll need another tax hike in the fall if current prosecution trends continue.

'Are some cities built to encourage drunk driving?' I'm talking to you, Houston

The Atlantic's Cities blog posed the question this week, "Are some cities built to encourage drunk driving?" Then Unfair Park and the TM Daily Post followed up, noting that Dallas and Houston show up as among the cities with the most fatal crashes and the largest proportion of fatal accidents involving DWI. Other Texas towns weren't far behind in that latter category: "Houston ranked second, Dallas fifth, and Austin seventh, with Fort Worth close behind at number 13 in the study recently put out by software company IDV Solutions on their UXBlog." See the full infographic ranking large US cities here.

Though it doesn't explain all the data, IMO a big factor is the availability of public transportation, as Grits has argued in the past. The Atlantic nailed it: Some cities are built to encourage drunk driving, particularly here in Texas. As Eric Nicholson wrote at the Dallas Observer's Unfair Park

This should make intuitive sense to anyone who doesn't live in Uptown, Deep Ellum or Lower Greenville and has ever gone out for a few drinks. Assuming no one volunteered to be designated driver, you're basically left with two choices: pay an ungodly amount for a cab or drive drunk and hope for the best. In places like New York, where things are denser and more accessible by foot or by public transportation, there are more viable options.

Bingo! As Nicholson pointed out, "That's not to say that people in Dallas have an excuse to drive drunk, just that the data make sense." However, Grits would add that the data show urban planning and other public policy decisions play a big role in DWI death rates that the enforcement-only crowd generally fails to acknowledge. Grits doesn't believe there are fewer drunks in New York, Washington D.C., or Philadelphia than in Dallas, Houston, or Austin; I just think those cities' governments had the foresight to give people a way to get home without climbing behind the wheel of a car.

Roundup: Big Brother online, little brother on your cell phone

A number of recent items related to electronic privacy, or the lack thereof, merit Grits readers' attention:

What cops get from Facebook
Wanna know what information Facebook will give up about you if any law enforcement agency sends them a subpoena? See here.

Big Brother is a Democrat, for today
The Obama Administration last year succeeded in authorizing a version of "Total Information Awareness" where the Bush Administration failed, the Wall Street Journal reported last month. Apparently the key was to do it behind closed doors and not to tell the press until months after the deed was done.

Your cell phone may be spying on you
The government isn't the only one who can invade your privacy. This company and others are marketing software which can be covertly downloaded onto a smart phone "through an untraceable installation process that takes less than 2 minutes" that lets you "listen in on live conversations in real-time and without the risk of being detected or traced!" Even more concerning, it contains a feature that "allows you to activate the target smartphone device’s integrated microphone through an SMS command, enabling you to record the conversation taking place in the surrounding environment." In other words, it can listen to your face-to-face conversations if the phone is in the same room with you. Marketed to helicopter parents and spouses suspecting cheaters, but also to employers, the technology is both creepy and cheap. The New York Times has a report on new legislation (pdf) moving in the Senate which would place limits on such applications and give consumers more control over their location data.

Congress sucks: Stored communications edition
A quarter-century old law allows the government to access your email if it's stored on a third-party server for longer than 180 days, and during the week between Christmas and the New Year, Congress gutted provisions in its reauthorization that would have updated the law to protect privacy during the era of cloud computing. If you use Gmail or other services to store your old emails, the government can access them, content and all, with only a subpoena, as the nation learned during the David Petraeus debacle. FWIW, Article 18.21, Section 4 of Texas' Code of Criminal Procedure requires state and local law enforcement in Texas to notify a suspect when they access  "stored communications" older than 180 days with an administrative subpoena, but contains a drive-a-truck-through it loophole, "as otherwise permitted by applicable federal law," that on its face seems to moot those protections.

SCOTUS to review Texas holding that defendant silence can be taken as 'substantive evidence of guilt'

Via SCOTUSBlog we learn that, "The Supreme Court agreed on Friday to decide a major case on the right to remain silent — a case testing whether that right exists for an individual who has not been arrested but is interviewed by police, and was not given Miranda warnings, when that silence was used to help prove guilt at a trial.  That case — Salinas v. Texas (docket 12-246) — was one of six new cases accepted for review." Here's a link (pdf) to the Texas Court of Criminal Appeals decision being challenged.

The Fifth Amendment to the United States Constitution states, “No person … shall be compelled in any criminal case to be a witness against himself.” The Court of Criminal Appeals acknowledged that, "The Supreme Court has held that a defendant’s Fifth Amendment right against compelled self-incrimination is violated if the State is allowed to impeach the defendant’s testimony by using his post-arrest, post-Miranda silence." But in Salinas they ruled that pre-arrest silence could be used for impeachment purposes.

So what does that really mean in practice? Essentially, said the CCA, prosecutors may argue in Texas courts that the act of remaining silent in the face of pre-arrest police questioning may "be admitted as substantive evidence of guilt."

While that stratagem would be disallowed in most of the country, "the Fourth, Eighth, and Eleventh Circuits, along with the States of Minnesota, Missouri, and Texas, have held that a defendant’s pre-arrest silence may be commented on by prosecutors and used as evidence of guilt at trial," according to a brief (pdf) filed with SCOTUS by the National Association of Criminal Defense Lawyers. NACDL cited SCOTUS' famous Miranda ruling, which included this example of how police might use a suspect's silence to improperly infer guilt. Imagine if a police officer said to the suspect:

Joe, you have a right to remain silent. That’s your privilege and I’m the last person in the world who’ll try to take it away from you. If that’s the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, ‘I don’t want to answer any of your questions.’ You’d think I had something to hide, and you’d probably be right in thinking that. That’s exactly what I’ll have to think about you, and so will everybody else. So let’s sit here and talk this whole thing over.

That line of questioning was quoted directly from the creators of the "Reid technique" of police interrogation, a version of which is still widely employed today (see prior, related Grits posts). As SCOTUS declared back in 1962, “[f]ew will persist in their initial refusal to talk . . . if this monologue is employed correctly,” but the court disallowed the tactic because it placed the defendant in a position where exercising a constitutional right would be used at trial to infer guilt.

So why would pre-arrest silence be any different? The NACDL brief applies the same hypothetical conversation with "Joe" from 1962 to the situation presented in the Salinas case:

The rationale of the decision below would allow for an even higher level of coercion. Suppose the officer continues, “Joe, you don’t have to answer my questions, but if you don’t, then that’s going to be used as evidence that you’re guilty. The prosecutor is going to stand in front of that jury and tell them that an innocent man would answer my questions. So you don’t need to talk to your lawyer, you need to answer my questions right now.”

Many would find this police conduct shocking and abusive. But the officer in this example is doing nothing more than correctly stating the law of the three circuits and three states which hold that there is no Fifth Amendment right to remain silent prior to arrest and that prosecutors can use a suspect’s silence as substantive evidence of guilt at trial.

That seems to me quite a strong argument. After all, as the NACDL brief remarked, “if the Government imposes a penalty upon an individual’s silence, then no 'free choice' exists and the suspect is compelled, in violation of the Fifth Amendment, to be a witness against himself.”

The Court of Criminal Appeals and respondents from the Harris County DA's office (see their brief [pdf]) argue that, in this case, the defendant came to the station house voluntarily and answered questions for nearly an hour, only refusing to answer one question: Whether ballistics testing would find the shotgun in his home a match to one used in a crime. However, even by the state's account, the questions asked in that first hour were about other possible suspects and the defendant only refused to answer when the questioning turned accusatory, showing police considered him a suspect. So naturally he only refused to answer "one question"; he ended the questioning after that!

The defendant was tried for murder, resulting in a mistrial when the jury could not reach a verdict. The state tried him again, this time putting much greater emphasis on the defendant's silence in response to questioning (he was convicted and sentenced to 20 years). Here's an excerpt from the prosecutor's closing argument quoted in the petitioner's request for SCOTUS to hear the case:

The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody – there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question.

To me, that's exactly the sort of prosecutorial argument the Fifth Amendment has historically been held to prevent. If that trial tactic is okay then the "right to remain silent" becomes utterly meaningless. Police need only pose their questions prior to arrest instead of arresting the suspect first and the entire issue becomes moot. Indeed, in this case, "After the interview, the police arrested [Salinas] on some outstanding traffic warrants to keep him at the station," according to the petitioner's brief, so the "non-custodial" aspect of the interview was really a fiction: The defendant was seemingly the only one who wasn't in on the gag.

Grits hopes the Supremes took this case in order to overturn the Texas decision, affirming in the pre-trial context their past position that, “The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent . . . to a confession of guilt.” That's exactly what happened to Mr. Salinas and as long as the ruling stands, it turns a fundamental constitutional guarantee on its head.

Woodworking program launched at TJJD's Mart facility

The Waco Tribune Herald has an item today on a woodworking program at the Texas Juvenile Justice Department facility in Mart recently launched by a local volunteer. Reported the paper ("Building their future: Youth offenders learn woodworking skills, life lessons in lockup," Jan. 11):

Two TJJD youth work on a child's chair.

Jesse Watkins, a former Waco Independent School District teacher and administrator who has enjoyed woodworking as a hobby for 25 years, is trying to reinvigorate the program at the Mart facility.

He hopes to partner with organizations in the community to procure more scrap wood and gather ideas for projects the boys can complete and then donate.

Learning woodworking has the potential to teach the boys vocational skills that eventually could help them land a job, Watkins said.

But, more importantly, they learn virtues such as patience, perseverance and teamwork as they see a project through from start to finish, he said.

“They feel better about themselves because even though they are in a rough situation, they can still learn some good things, something that will help them in the future,” Watkins said. “It gives them confidence.”

The program is looking for donated materials and nonprofits with project ideas: "To donate supplies to the woodworking program at the Texas Juvenile Justice Department lockup in Mart or to request a project be done, contact community relations coordinator Katherine Davis at 297-8483 or email her at Katherine.davis@tjjd.texas.gov."

First case under consideration in Texas arson review

The Dallas Morning News editorial board offered praise this week for the arson review being conducted by the state fire marshal and my employers at the Innocence Project of Texas in an item ("Duty to correct arson cases," Jan. 9) which opened thusly:

Breakthroughs take time in criminal justice reform, and they get messy, but they are no less impressive when they happen.

Just this week in Houston, the state fire marshal’s office sat down with outside experts to pore over a short list of old arson cases suspected of using junk science to put someone behind bars. One of those suspect cases, from the Central Texas town of Hewitt, is on a separate review track in McLennan County. The district attorney there has cited “serious and complex issues” involving arson forensics in the murder conviction of Ed Graf, who will get a hearing Friday on a writ to reopen his 26-year-old case.

All this traces back to the noisy early days of the Texas Forensic Science Commission and its first case, the arson-murder conviction of Cameron Todd Willingham, executed in 2004. Critics were prone to calling reformers out of bounds, grandstanders who were out to undermine Texans’ support of the death penalty.

Those critics need to take a look today. The fight was a righteous one and has yielded a kind of systematic re-examination of the science in arson convictions that is unprecedented in the nation.

The News pointed to a Waco Tribune Herald report from December ("Experts to testify in Ed Graf arson/murder case from 1980s," Dec. 23) on the first arson case to undergo joint review by IPOT and the fire marshal, that of a man named Ed Graf. A hearing on Graf's habeas writ was scheduled in Waco for today. The Trib story opened:

Two of the nation’s leading fire science experts are scheduled to come to Waco next month for a hearing that will help decide the fate of a Hewitt man who claims he was wrongfully convicted of arson murder.

But the hearing could have implications far beyond Ed Graf’s case, said Jeff Blackburn, chief counsel for the Innocence Project of Texas.He said the state’s criminal justice system is starting to come to terms with the idea that junk science contributed to a number of wrongful convictions in recent decades.

But the state’s highest criminal court has not yet developed a uniform and fair way of handling such injustice, he said.

The hearing in Graf’s case, scheduled for Jan. 11, will be the first post-conviction hearing in Texas where attorneys will present evidence to show faulty fire science was used to secure an arson conviction, Blackburn said.

If he and Waco attorney Walter M. Reaves Jr. are able to provide the level of proof they think they can, Graf’s case could well be the one that finally causes the Texas Court of Criminal Appeals to set a precedent that offers appropriate relief to people ensnared by bad science, he said.

“The law in this area is complicated and generally terrible, but the facts of Ed Graf’s case are not,” Blackburn said. “It shows the stark possibilities of the way science can be misused and abused in a courtroom. The guy shouldn’t have been convicted and deserves a new trial.”

The DA and Graf's ex-wife still believe he is guilty, but the arson "science" in Graf's case eerily tracks the outdated and debunked techniques in the Todd Willingham debacle. Again, from the News:

The commission’s final report — while not commenting on Willingham’s guilt or innocence — said prosecutors relied on arson investigators who had a poor understanding of fire science and learned their craft when there were no uniform standards.

Those very themes surfaced in the Graf case, in reports compiled by experts retained by the Innocence Project of Texas. Prosecutors put Graf away for life after his two stepsons burned to death in a frame storage shed behind his house.

Yet the state arson investigator had little grasp of how fire burns and employed “old wives’ tales” in reaching conclusions, one expert wrote. Worse, there was no “crime scene” to examine, since the burned-up shed had been knocked down by volunteer firefighters and hauled off to a dump.

That's exactly what happened in the Willingham case, where probative evidence was simply hauled off to the dump and the main arson indicators cited by investigators are no longer considered valid.

Grits has no connection to IPOT's legal work on Graf's case and knows nothing more about it than has been reported in the press. But I've spent a great deal of time analyzing the revolution in arson investigation that's occurred since the early '90s, and feel strongly that the possibility of error in some of these older cases was high. For that reason, Grits agrees with the Morning News that "Graf, at the very least, deserves another day in court." And today's the day.

First MSM coverage of push to require warrants for GPS tracking by law enforcement

The Dallas News today has coverage ("Texas civil liberties advocates  seek limits on law enforcement tracking cell phones," Jan. 10) of Grits' efforts to seek legislation requiring a warrant for police to access cell-phone location data, a topic with which regular readers will be familiar. The article opens:

Smartphones and certain apps can help you find where your kid is hanging out, check on the whereabouts of an absent co-worker or spy on your spouse.

But the satellite navigation that allows for such tasks also helps police track a phone user’s exact location, and Texas civil liberties advocates say that kind of surveillance without court approval goes too far.

They want to update state law to require a court-ordered warrant for cellphone GPS tracking by law officers, with some exceptions. Police can currently track someone’s whereabouts by requesting cellphone company records, said Scott Henson, whose Austin-based gritsforbreakfast.org is influential among criminal-justice policy watchers.

“The law has not kept up with the technology,” said Henson, who is circulating proposed legislation to modernize the state Code of Criminal Procedure. No lawmaker has agreed to sponsor the measure yet, he said, but “folks really seem to intuitively understand that it’s a big deal.”

The American Civil Liberties Union of Texas and EFF-Austin, a “cyber liberties” organization, are also working on the effort, part of a national movement toward tightening up privacy for mobile device users.

Texas law officers currently have to get a court warrant for a wiretap, Henson said, and a court order is required before police can attach an electronic tracking device to someone’s vehicle. But he said the rise of smartphones equipped with GPS navigation means police can simply subpoena tracking records from cellphone companies, which received 1.3 million such requests in 2011.

Working with EFF-Austin, the ACLU (both state and national) and volunteers from among Grits readers, my wife and I put together a draft version of legislation we'd like to see filed and this week began making the rounds to seek out potential sponsors. Nobody has bitten yet, but I've been gratified at the reception in the Lege offices we've visited so far and suspect we'll soon find someone to carry it.

The Dallas News story quoted a police union rep who seemed surprisingly sanguine, if grouchy, about the bill's prospects:

While police respect privacy rights, law enforcement uses technology to combat crime, just as criminals use it for their purposes, said Charley Wilkison, public affairs director for the Combined Law Enforcement Associations of Texas.

“It’s a balance between the freedom of the individual … and the right of law enforcement to try to get at the bad actors,” he said.

Wilkison said accusations that GPS data is used broadly by police to spy on regular citizens are “a damn lie.” But he acknowledged that civil liberties advocates have a receptive audience among many lawmakers because of the “strong libertine, independent streak” in Texas.

To be clear, nobody said that "GPS data is used broadly by police to spy on regular citizens," so that's a red herring (Charley's a master at concocting them). But it's also true that, because requests by police for GPS data are sealed forever, nobody can know for sure what they're doing with the information. Similarly, nobody is saying that law enforcement shouldn't access GPS tracking data to fight crime, only that the tactic in most cases should require judicial oversight and, eventually, the public should get to know how those methods are being used.

That said, there is some evidence that requests for cell-phone location data are being used quite broadly by the feds, including in thousands of cases where charges are never filed, but nobody knows how frequently Texas agencies use the tactic. Federal Magistrate Judge Stephen Smith in Houston has pointed out that, when “Asked to furnish … cases brought against individuals who had been subject to warrantless cell phone tracking since 2001, the Department of Justice identified…about 38 cases a year. Given that the federal government obtains tens of thousands of these orders every year, this data suggests that the government is spending more time chasing the innocent than the black sheep and ne’er do wells.”

My guess would be that how and how often Texas law enforcement agencies access GPS tracking data varies widely. Some may misuse the privilege, while others may be more circumspect. If this bill passes, we'll get to find out. However, we know for certain that any possible abuses can never be uncovered under the current system, where not just the public but even Texas judges can be kept in the dark when law enforcement accesses those records, which require only a subpoena to obtain.

Unreported in the Dallas News story, but importantly, the version of the bill we're shopping includes exceptions to the warrant requirement during immediate, life-threatening emergencies and when the owner of an electronic device has reported it stolen. Also, to clarify, the bill includes not just smart phones but also regular cell phones (which are used by 88% of American adults) and other personal electronic devices that generate location data.

See a fact sheet regarding the proposed legislation that we're distributing as we look for bill sponsors. If you're a lege staffer and think your boss might be interested in carrying this bill, or if you live in Austin and are interested in volunteering for the effort, please shoot me an email.

Smith County prosecutors smeared Kerry Cook, destroyed, withheld evidence

At the Texas Tribune, Brandi Grissom has the latest on Kerry Max Cook's pursuit of exoneration and the continuing misrepresentations by the Smith County DA about the case. “'They’re not just opposing Kerry’s bid to exonerate himself, but they’re saying all kinds of things about evidence at the trials that just isn’t true,' said Nina Morrison, staff attorney at the New York-based Innocence Project.”

Even more disturbing, reported Grissom, "After Cook's lawyers requested additional DNA testing on evidence in the case, they discovered some evidence had been destroyed and the storage of other evidence had presented questions regarding its chain of custody." In an apparent act of gamesmanship:

in December 2001, Smith County prosecutors destroyed much of the key physical evidence in the murder case without notifying Cook’s lawyers. Among the items destroyed were Edwards’ bra, panties and jeans, a hair found on her buttocks and all the latent fingerprints found at the scene. The destruction came just months after lawmakers passed the 2001 law that allowed for post-conviction DNA testing and required prosecutors to notify defendants before destroying evidence that might contain biological material.

These sorts of hide-the-ball tactics have characterized this case from the beginning, to the point that the Court of Criminal Appeals once opined that "Prosecutorial and police misconduct has tainted this entire matter from the outset," as Texas Monthly's Michael Hall reported last year. Read Brandi's full story for more examples of shameful misrepresentations by Smith County prosecutors, none of whom, it should be mentioned, have ever been held accountable for their actions by the state bar.

See prior, related Grits posts:

• 'Two Decades on Death Row, 15 Years in Limbo: Kerry Max Cook's Struggle for Justice'

• 'Released but not exonerated'

• Kerry Max Cook: 'Rogue' DAs don't deserve 'Prosecutor of the Year' honors

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

• Kerry Max Cook seeks DNA testing, formal exoneration

• Thousands petition Perry for Kerry Max Cook pardon

• Letter from an innocent man

Prosecutors 'double down' on evidence tampering, now can 'go for broke' knowing judges could bail them out

Recently I'd noticed a remarkable December dissent (pdf) by Justice Patrick Pirtle of the Amarillo 7th Court of Appeals which opined:

I am bothered by the frequency with which prosecutors of this State have turned to section 37.09 of the Texas Penal Code to “double-down” on defendants by seeking a second conviction for “tampering with evidence” when an accused merely acts to dispossess himself or herself of evidence of another crime. I do not believe the Legislature intended section 37.09 to be used in that fashion, and until the Court of Criminal Appeals speaks to the matter, I will continue to view such prosecutions in a circumspect manner.

"I do not believe that section 37.09 criminalizes merely dropping an object or distancing yourself from it," wrote Justice Pirtle, though in that case his two fellow judges on the panel disagreed.

Then on yesterday's Texas Court of Criminal Appeals hand down list, reported the Lubbock Avalanche Journal ("2008 evidence tampering case sent back to Amarillo Appeals Court," Jan. 10), the issue resurfaced. The paper described the latest case thusly:

A Lubbock County jury convicted [Gregory] Thornton of tampering with evidence in a 2008 trial before District Judge Jim Bob Darnell and sentenced him to 45 years in prison. In August 2012, however, the Amarillo-based appeals court overturned that conviction on grounds that the evidence didn’t support the verdict and acquitted Thornton.

Thornton and a woman with whom he was walking were arrested in April 2008 by Lubbock police for possession of drug paraphernalia, a misdemeanor.

A Lubbock County grand jury indicted Thornton on one count of tampering because one of the arresting officers saw him take something out of his pocket and drop it. The dropped materials turned out to be a broken crack pipe and a “Brillo pad.”

“Brillo pad” is a slang term among crack users for a piece of copper scrubbing pad used as a filter under the burning piece of crack in the pipe bowl.

The appellate court noted the arresting officer testified at trial he saw Thornton drop the pipe and saw where it landed. As a result, the Amarillo court ruled Thornton “merely dispossessed himself of the evidence,” but was not guilty of tampering with evidence because he made no attempt to hide it from the officers.

“Appellant never affirmatively acted to make the crack pipe unavailable in a subsequent investigation,” Justice Patrick A. Pirtle wrote for the Amarillo court.

When I'd first read Justice Pirtle's concerns, it never occurred to me prosecutors might use that charging trick to turning a misdemeanor paraphernalia charge into a felony with a 45 year sentence! Wow!

The Court of Criminal Appeals did not dispute Justice Pirtle's analysis that Mr. Thornton did not tamper with evidence, but said they "should have considered whether the evidence was sufficient to support a conviction for the lesser-included offense of attempted tampering with evidence," even though prosecutors did not allege that crime at trial. (See the brief ruling.) Ordering the Amarillo court to evaluate whether Mr. Thornton might be guilty of other, lesser charges the prosecution never sought is itself a shift in the CCA's jurisprudence. Again, from the Avalanche Journal:

The high court, noting that it was considering what turned out to be a landmark decision in criminal cases at the same time, directed the Seventh Court of Appeals to determine if evidence in the trial record could support convicting Gregory Thornton of attempted tampering with evidence.

The decision appears to be one of the first times the Court of Criminal Appeals has applied a decision released in September that allows appellate courts to change a verdict to address a lesser offense even if the lesser offense was not pleaded or included in jury instructions.

That decision reversed a 1999 decision by the Court of Criminal Appeals that said an appellate court could only reform a verdict to a lesser-included offense if the evidence didn’t support a guilty verdict in the greater offense but did fit the reduced charge, and if the lesser offense had been requested by either side in the case or included in jury instructions by the trial judge.

Here's the new case, Bowen v. State, which revised the court's precedents to allow appellate courts to change verdicts to crimes never charged by the prosecution. The purpose of the old precedent, said the court in Bowen, which "was to prevent the State from overreaching and having an unfair advantage over the defendant, has been lost through our subsequent decisions." That prior ruling was "based on the rationale that allowing the reformation of judgments would encourage the State to use a 'go for broke' trial strategy of not requesting a lesser-included offense instruction in order to make it more likely to obtain a conviction for the charged offense." Now, apparently, such "go for broke" tactics are fair game.

In Bowen, the state was engaging in exactly this sort of overreach, seeking first degree felony charges by alleging the amount stolen from a family trust was above $200,000 when, in fact, the "value of the property misapplied was approximately $103,344," which would only justify second degree felony charges. Even so, said the CCA, "the judgment must be reformed to reflect a second-degree felony conviction" instead of acquittal.

I wonder how frequently it happens that misdemeanor charges are bumped up to a decades-long felony sentence based on the sort of prosecutorial ploy used in Thornton? Grits shares Justice Pirtle's frustration at such a sweeping use of the evidence tampering statute, and wonder what consequences might arise from allowing appellate judges to affirm convictions for charges never brought by the prosecution.

SCOTUS seems ready to require warrants for DWI blood draws; recent Texas statutes implicated

Judging from the tone of oral arguments (pdf) at the Supreme Court yesterday, it appears the justices will likely end up requiring a formal search warrant for most DWI blood draws, though the possibly was raised of defining some set of exigent circumstances under which police could get around it. At SCOTUSBlog, Lyle Denniston opined that from the judges questioning, "it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving." See also AP's coverage.

Justice Kennedy, who is so often a swing vote on criminal justice cases, seemed to argue that if the two dozen-plus states already required a warrant without any undue, negative consequences, then the practical concerns about timeliness were overstated. Other states, he noted, "do have a warrant requirement and from what we can best tell make it work very well, including some expedited procedures where you can get warrants within minutes." Justice Antonin Scalia emphasized that the intrusion into someone's body was an even greater violation than entering their home, which along with his other commentary seemed to imply he too favored a warrant requirement.

The question becomes, are there potentially exigent circumstances - beyond the natural dissipation of alcohol from drivers' blood - where a warrantless blood draw is justified? That seemed to be where the crux of the debate fell.

Texas is one of 25 or 26 states (both numbers were tossed out at different times during oral argument) that already requires a search warrant before police can subject suspects to a forced blood draw. (N.b., see the correction below.) To AG Greg Abbott's credit, Texas was not one of the 15 of those states that signed onto an amici brief urging SCOTUS to allow what their own state law forbade. See this summary of Texas case law on the subject.

UPDATE/CORRECTION: A commenter correctly emended this post to clarify that, "Texas allows warrantless blood draws for felony DWI cases," including where the defendant has two or more DWI priors or was convicted in the past of intoxication manslaughter. Grits had indeed forgotten that the 81st Texas Legislature took that step, which TDCAA's DWI resource prosecutor Clay Abott said  "virtually remove[d] the need for blood search warrants in felony cases." See his discussion of the statute, which seems likely to be affected if SCOTUS rules a warrant is required for DWI blood draws. Here's how Mr. Abbott described the warrant exceptions under Texas law:

As of September 1, 2009,  Chapter 724 of the Texas Transportation Code requires an officer to draw blood without a warrant if:

•    the subject, arrested for an offense under Penal Code Chapter 49, refuses to provide a breath sample and a person other than the suspect “has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment”;
•    the suspect is arrested for DWI with a child passenger under Penal Code §49.045;
•    the officer credibly believes that the suspect can be charged with felony DWI due to two prior Chapter 49 DWI offenses or one prior intoxication manslaughter; or
•    the officer credibly believes that the suspect committed DWI and was previously convicted of intoxication assault or DWI with a child passenger. (This offense would be enhanced to a Class A misdemeanor.)

When making a DWI arrest, the officer must request a breath or blood sample. If he has a reasonable belief that any of the above additional circumstances exist, then a blood sample must be drawn. It’s that simple. The officer has no discretion to call an early end to the shift, nor does he need a search warrant for blood. 

Prior DWIs and child passengers, one notes, aren't among the "exigent circumstances" hypothesized by SCOTUS justices during oral arguments.

MORE: From Orin Kerr at the Volokh Conspiracy and Scott Greenfield at Simple Justice.

Report: More TX drug arrests, stagnant diversion funds could soon fill up prisons

A new report from our friends at the Texas Criminal Justice Coalition calls for expanded access to drug treatment services, reported the Texas Tribune. Their coverage today opened:

Instead of throwing drug addicts in jail, the state should invest more money in substance abuse treatment, says a report issued Thursday by the Texas Criminal Justice Coalition, which adds that the move could provide millions of dollars in savings and improve public safety.

“You cannot cure addiction by locking it up,” said Ana Yáñez Correa, executive director of the coalition. “It doesn’t cure it; it makes it worse.”

In Texas, arrests for drug possession have increased 32 percent in the last decade, and about 90 percent of all drug-related arrests are for possession — not dealing, according to the report. In 2011, the nearly 15,000 inmates in jails and prisons on drug possession offenses statewide cost taxpayers more than $725,000 daily. The coalition argues that providing more state resources for treatment would be less costly and would prevent crimes associated with drug use.

Since 2007, lawmakers have directed money that would have been invested in building new facilities for a growing inmate population to diversion, probation and treatment programs. As a result, the prison population has fallen so much that in 2011 lawmakers for the first time closed a Texas prison, the Central Unit in Sugar Land. And this year, state Sen. John Whitmire, D-Houston, has said lawmakers should consider shuttering two additional units.

But in the face of a $27 billion budget shortfall in 2011, lawmakers curtailed the growth of some of the diversion and treatment programs that had helped slow the incarceration rate in Texas. Without more investment in those kinds of programs, Texas prisons and jails could again exceed their capacity by 2014, according to the report.

The report (pdf) included these telling data:

• 90% of drug-related arrests in Texas are for possession – not for delivery or distribution.
• In 2010, more than 125,000 individuals in Texas were arrested for possession, more than 10% of the total arrests made for any crime. 
• 30% of incoming TDCJ inmates were sentenced for drug offenses in 2011, 75% of which were for possession.
• More than 27,000 individuals in prison in 2011 were there because of a drug offense, 16,000 of which were for possession.

The Legislative Budget Board has projected that, without additional legislative action on diversion programming, the recent dip in Texas' prison population will soon end and the state will face full prisons at a time when the agency is unable to adequately staff the facilities they've got. TCJC's report provides a blueprint for addressing the one category of prisoners which has continued to expand even as overall crime rates precipitously declined.

We'll soon discover whether the 83rd Texas Legislature will accept the group's challenge to spend a little more on treatment and diversion programs to avoid much greater spending on prisons down the line. The investments in such programs since 2007 worked better than anyone - even advocates - could have expected, with none of the crime-inducing downsides predicted by law enforcement interests. It's time to double down on that strategy.

That said, while Grits supports expanded diversion programming, to me the report avoids the elephant in the room, which is that penalty categories for drug crimes are too severe. An arrest for the tiniest amount of marijuana requires counties to pay for indigent defendants' lawyers, while an arrest for any amount of cocaine, meth or  heroin, for example, brings an automatic felony charge. Grits has argued that ratcheting down these categories by one notch would bring dramatic relief both to the counties' and TDCJ's bottom line. Do I think the Lege is prepared to go that route? Likely not. But combined with expanded treatment resources, such a move would relieve tremendous pressure not just from prison costs but court caseloads and local indigent defense expenditures. Whether this session, the next, or one thereafter, it's something the Legislature will eventually need to confront if they really want to limit historically rampant corrections spending growth.

SCOTUS refused to consider standards for relief in actual innocence claims

The US Supreme Court has consistently refused to address whether convicting an innocent person violates their due process rights, and in a high-profile Texas case has again refused to confront the question. Rosa Jimenez was convicted of murdering a child under her car by stuffing towels down his throat, a charge for which virtually all the convicting evidence came from expert witnesses. Jimenez was granted her own expert but, as the Austin Chronicle's Jordan Smith put it, he "had a meltdown on the stand and cursed at prosecutors in the hallway – a tongue lashing used to discredit him on the stand." In her latest appeal, wrote Smith:

While then-Judge Charlie Baird ruled that Jimenez should be granted a new trial, the Court of Criminal Appeals subsequently rejected his findings, made from a multi-day evidentiary hearing with live witnesses in his court, and ruled instead not only that Jimenez was not entitled to as many experts as the state, but also that evidence of Jimenez's innocence was not "clear and convincing," the standard by which the CCA ruled that she should be judged.

Whether that is the proper standard for considering whether the evidence points to Jimenez's innocence was among the questions before the U.S. Supreme Court in a certiorari petition filed on Jimenez's behalf this summer. Both the Mexican government, a group of distinguished legal scholars from across the country (including UT's own Jordan Steiker), and Dallas County District Attorney Craig Watkins were among those filing briefs with the Supremes urging them to take the case. To the Dallas D.A., the case was a perfect vehicle to determine what standard should apply in determining a defendant's free-standing claim of actual innocence – that is, a where a claim of innocence stands alone, without being tied to a Constitutional claim or other procedural defect – and to decide whether a preponderance of evidence, clear and convincing evidence, or some other standard altogether should be used to evaluate such claims.

The Travis County D.A.'s office opposed the move, arguing that Jimenez's case was not (at least at present) the vehicle by which any consideration of free-standing actual innocence claims should be decided.

The Supremes rejected the case yesterday, without written order, kicking the matter back to the federal district court for further proceedings that will address the issues raised before the high court.

Their refusal is disappointing, but hardly surprising. In Herrera v. Collins and other cases, SCOTUS has refused to recognize a “claim [of actual innocence] as a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” In Herrera, SCOTUS declared that, "the traditional remedy for claims of innocence ... has been executive clemency," which in modern times has become a sad joke for all but the most trivial, long-ago cases.

MORE: From the Austin Statesman. See also Jordan Smith's earlier coverage of the case.