Rough day for Central Texas prosecutors: Anderson, Lehmberg headed to jail

Today was a rough day for Central Texas prosecutors:

Re: Judge Ken Anderson and the Michael Morton court of inquiry:

Former Williamson County District Attorney Ken Anderson was ordered arrested and booked into jail for the “intentionally harmful act” of hiding favorable evidence to secure Michael Morton’s 1987 conviction for murder, the court of inquiry found.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” District Judge Louis Sturns ruled. [Ed. note: See his findings.]

Sturns found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court, then ordered Anderson to be arrested.

Re: Travis DA Rosemary Lehmberg, sentenced to 45 days in jail for DWI:

Attorney David Sheppard, representing Travis County District Attorney Rosemary Lehmberg at her plea hearing, said Lehmberg's punishment is “without a doubt” the “harshest” sentence for a first-time drunken driving charge in the history of Travis County. Lehmberg pleaded guilty Friday to drunken driving and was sentenced to 45 days in jail before being immediately taken into custody. Lehmberg’s driver’s license was also suspended for 180 days.

Between these extraordinary events and the crazy news out of Kaufman County, where the murderer of the DA, his wife and another local prosecutor allegedly turned out to be a former Justice of the Peace (as opposed to the Aryan Brotherhood or Mexican drug cartels, as widely speculated), it's been a truly remarkable week for Texas prosecutors. I can't offhand think of another one like it.

Mental health in solitary

Here's a nice little radio segment from KUT on legislation previewed here to create a task force to study mental health and other issues related to solitary confinement in Texas prisons. Give it a listen. Exoneree Christopher Scott, who spent about a year in solitary during his 13 years in prison for a crime he didn't commit, testified in the Senate committee in favor of the bill.

Employee of TDCJ chair nominated to join him on board

One of the nominees up Monday to the Texas Board of Criminal Justice overseeing the state prison system is actually an employee of its current chairman Oliver Bell, according to her LinkedIn page, which informs us that Annette Raggette has been Vice President of Oliver Bell, Inc. from June 2003 to the present. Her bio on the TDCJ board page does not list the affiliation, focusing on a more recent, concurrent post as President and CEO of something called The Crescent Group, Inc., about which not much information is available online. Small world, huh?

Faulty field test led to false drug conviction: Court of Criminal Appeals overturns

The Texas Court of Criminal Appeals today overturned a state-jail felony drug conviction - Ex Parte Donna Marie Davenport Fritsch, out of Montgomery County - on actual innocence grounds. She was falsely convicted based on an erroneous field test that was later contradicted by testing at a DPS crime lab. From the court's order: "At the time of Applicant's arrest, the substance seized from her vehicle field-tested positive for methamphetamine. After she pleaded guilty to this offense, the Texas Department of Public Safety Crime Laboratory issued a report indicating that laboratory analysis of the evidence detected no controlled substance."

Makes one wonder about the validity of the "field test" used and how many other convictions have been obtained based on similar tests without confirmation by a crime lab. Said the CCA, "The trial court concludes that Applicant has demonstrated that she is actually innocent of the offense to which she pleaded guilty," and the high court formally overturned  her conviction.

TCLEOSE officials seek protection after enforcement actions generate threats

Until the ascension of current executive director Kim Vickers about a year-and-a-half ago, the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) rarely if ever engaged in enforcement actions against local agencies that violated standards in the Occupations Code, focusing instead on provision of training and technical assistance to police administrators. Vickers told Grits yesterday that, once they started enforcing the rules - even seeking indictments in some instances when criminal conduct was discovered, as evidenced by this Grits post published Sunday - he and his commissioners began receiving personal threats. As a result, on the advice of a 47-page threat assessment prepared by a fellow who previously coordinated dignitary protection in Afghanistan, TCLEOSE now has a protection detail for Vickers and TCLEOSE commissioners to go with them when they make public appearances in official capacities. (Grits has requested a copy of the assessment under the Public Information Act.)

Isn't that remarkable? These aren't gang members or drug cartels threatening TCLEOSE officials but disgruntled current and former police officers! Vickers said officers sometimes get extremely angry and emotional when their livelihood and personal identity are threatened, even when it's because of their own misbehavior. These folks, he said, are armed and generally proficient and more comfortable with weapons than the general public, so the agency takes threats to personal safety quite seriously.

After five felony indictments were brought against a training coordinator in Alpine last year (still pending) and the Buckholts police chief was was arrested, Vickers said his office was "inundated with calls" alleging misconduct at other agencies. Many complainants had not reported the incidents earlier because they thought the agency wouldn't do anything. Partly because TCLEOSE in the past seldom pursued such cases and partly because of 2011 budget cuts, the volume has overwhelmed them. There are only two investigators available to look into these allegations, both of whom presently have 50-75 cases on their plate, he said. Vickers indicated there would likely be more, similar cases reported in the press before the year is out.

For now, with the volume so high and the agency understaffed (they lost 27% of their staff to 2011 budget cutting), TCLEOSE cannot proactively pursue such cases, Vickers said. They can only react, investigating the small mountain of cases brought to them. He said additional staff included in the House and Senate budgets would help but not solve the problem. He told the Senate he'd need ten more investigators - on top of the current two - to effectively manage the volume. But of the new TCLEOSE staff envisioned in the House and Senate versions of next biennium's budget, he said, only one is an investigative slot.

Vickers contacted me to offer clarification regarding media reports of recent TCLEOSE enforcement actions, reacting to questions by Grits commenters and clarifying the law surrounding a Starr County case where a Sheriff's deputy was licensed with a deferred felony on his record. He distinguished between administrative violations alleged in Bell County and allegedly criminal acts committed by the Freestone County Sheriff and others. In the case out of Starr County, he said the McAllen Monitor incorrectly reported that a deputy's felony deferred adjudication would bar him from service - the Legislature didn't change the law to disallow that until 2001 and the deputy's 1999 licensure would have been grandfathered. See the final addendum to Sunday's post for more details.

El Paso case highlights need for recording custodial interrogations

Rep. Terry Canales' HB 1096 requiring law enforcement to record custodial confession in the most serious cases passed out of the Texas House Criminal Jurisprudence Committee yesterday. Then, as if on cue, reporter Jordan Smith has published a story in The Nation this week describing an apparent false confession case out of El Paso. In 1993, Daniel Villegas was arrested for a drive-by shooting. Wrote Smith:

Villegas insisted he had nothing to do with the crime and said he was with a group of friends—who were babysitting and watching the movie White Men Can't Jump—when the shooting occurred.

Yet, hours after he was brought in for questioning, just before 3AM, Villegas made a statement confessing to the crime. The confession alone would be enough to send Villegas to prison for life.

But 19 years later, in August 2012, El Paso County District Judge Sam Medrano declared that Villegas, who is now 35, should be given a new trial. The confession obtained by Detective Alfonso Marquez was coerced, he ruled, and the court-appointed attorney who represented Villegas at trial was severely ineffective. “For our justice system to work it must make two important promises to its citizens: A fundamentally fair trial and an accurate result,” Medrano told a packed courtroom on the morning of August 16. “If either of these two promises are not kept, our system loses its credibility, our citizens lose their faith and confidence in our court system, and eventually our decisions and laws become meaningless.”

El Paso prosecutors have pushed back against the court’s ruling, filing objections to Medrano's findings and urging the state's highest criminal court, the Texas Court of Criminal Appeals—known to be fond of finality rather than a stickler for certainty—to affirm Villegas' conviction. Villegas, in the meantime, remains behind bars. Whether he will get a new day in court is now in the CCA’s hands.

Villegas' case remains a potent example of the insidious problem of false confessions, the incomplete or sloppy police work that often accompanies them, and the damage done by defense attorneys who fail to investigate or to defend their clients—in Villegas' case, a story that has almost certainly landed the wrong person in prison while a killer remains unpunished for his deeds.

Villegas was a juvenile, interrogated for hours late into the night, and got many facts wrong in his recitation of events, from where he shot the victim (in the back, he said, but in reality it was the front) to what sort of gun he used (Villegas said he used a shotgun; it was a .22 caliber pistol) and what kind of car he was in (he said a white sedan; witnesses said it was maroon). Then in 2011, in response to billboards placed around town asking for help, a witness came forward who saw the shooting and named the alleged real culprits, two brothers who police had questioned about the shootings but stopped pursuing after Villlegas' confession. One is now dead, the other is in federal prison on drug trafficking charges. The latter man was called to testify at Villegas' habeas corpus hearing but took the Fifth, refusing to testify because his testimony might tend to incriminate him. Remarkably, he did testify that the DA's office had never interviewed him in preparation for the habeas hearing.

Often false convictions stem from a confluence of error as opposed to a single, well-defined cause and  Villegas' case is no exception, combining pretty blatant ineffective assistance of counsel with the apparent false confession. Wrote Smith:

Villegas was actually tried twice for the deaths of Lazo and England. The first time he was represented by a hired attorney who fought hard to counter the state’s case, which was—and remains—built solidly on the confession obtained by Detective Marquez. That trial ended in a hung jury. The state decided to give it another go, but by this time, the Villegas family no longer had money to pay for a defense lawyer, says Mimbela. Although the original attorney offered to continue on, the trial judge refused, appointing an entirely new attorney, John Gates, just sixty days before the retrial.

To say that things did not go well the second time around is an understatement: Gates failed to call any of Villegas' alibi witnesses. In fact, according to veteran criminal defense attorney Joe Spencer, Villegas' current attorney—hired by [John] Mimbela—Gates failed to do anything more to prepare for the case than to read over the transcripts of the first trial. He then failed to do anything with the evidence the transcripts provided.

HB 1096, which if in place at the time would have required Villegas' entire interrogation to be recorded instead of only his confession statement,  is one of two bills moving this session implementing key recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions. Now the bill heads to the House Calendars Committee which so far has been extremely picky about which bills it's been posting for floor votes. This legislation, however, deserves an up or down vote by the full House sooner than later.

See related Grits posts:

• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Exonerees' work featured on radio, film

NPR produced a feature on several Dallas exonerees who've launched a nonprofit group, the House of Renewed Hope, aimed at investigating possible innocence cases and pressing for innocence reforms. See the rather extensive story that ran yesterday on All Things Considered. The NPR piece grew out of an earlier story by May on the same topic in The Texas Observer. More from May here.

Notably, documentarian Jamie Meltzer from Stanford University is teaming up with Michael May, the author of the NPR story, to produce a film titled Freedom Fighters. They're attempting to crowd-source the start-up funds. Go to their Kickstarter page if you want to contribute to the project.

'Protect cell phone data from Big Brother'

The title of this post is the headline of an Austin Statesman editorial today endorsing legislation to require a warrant for cell-phone location data. Here's how it opens:

Sophisticated cellphone technology has made it easier than ever before for companies to track our every purchase and advertisers our every mood. And for police departments and other law enforcement agencies to track our every move. As our phones become smarter, our privacy becomes more vulnerable.

Texas lawmakers are considering two bills whose time is past due. They would clarify the application of the Fourth Amendment to cellphone data by requiring police to demonstrate probable cause to obtain a search warrant for cellphone records. The proposed legislation would help limit potential abuses of cellphone data by placing limits on the easy shortcuts such data allows law enforcement to take.

Republican state Rep. Bryan Hughes of Mineola and Democratic state Sen. Juan Hinojosa of McAllen are the primary authors of the proposed legislation, which addresses an issue that has divided the courts. A hearing on Hughes’ House bill was held last month. The bill was left pending in committee. ...

Most of us realize on some level that we give up a degree of privacy when we use our cellphones and other electronic devices. But most of us probably fail to appreciate how easily our electronic actions can be tracked, and what it potentially means. The privacy implications are profound.

One clarification: The editorial says police now access this information under a "reasonable suspicion" standard but the situation is not nearly so clear. By my count, various law-enforcement sources have cited four different standards presently used to access this data - a function of vagueness and confusion created by state and federal laws. Let's quickly run through them.

At the House Criminal Jurisprudence Committee, a representative from the Texas Department of Insurance testified that they routinely obtain cell-phone data with no judicial oversight through administrative subpoenas under Art. 18.21 Sec. 15 of the Texas Code of Criminal Procedure (CCP), which is what one would assume from a plain reading of the Texas statute. Under federal law - 18 USC 2703(d) - the standard is "relevant and material," which is roughly mirrored under Art. 18.21 Sec. 5 of the Texas CCP (though Sec. 5 does not specifically discuss cell-phone data). Some agencies say they use the "reasonable suspicion" standard referenced in the editorial, but there's no statutory basis for it. (They appear to be applying the same standard that's presently required under CCP 18.21 Sec. 14 for the sort of "mobile tracking devices" that SCOTUS addressed in US v. Jones.) And finally, some prosecutors just get a full-blown probable cause warrant already because the law is so unclear: An example would be the investigation of the Kaufman County prosecutor murders, where prosecutors obtained cell-phone data under a probable cause warrant. The truth is, nobody knows for sure what the standard is right now under Texas law, though there are many strong opinions on the topic.

Such confusion occurs because the Lege wrote the statute before cell-phone tracking was common, or at least commonly understood. (It's apparently been going on since the '90s but was first reported publicly in 2005.) Twentieth century law simply did not contemplate this 21st century police tactic so nothing in the statute is precisely on point. The lack of clarity in CCP 18.21 surrounding such a widely used investigative tool is perhaps the strongest argument for the bill. Indeed, this is the 8th session I've been coming to the Texas capitol and IMO CCP 18.21 is the probably the worst-written, most confusing statute Grits has ever personally laid eyes on - state or federal - which is saying something. It's a complete mess, probably deserving of a page-one rewrite. Much of the core terminology dates from the 1960s and '70s when the only computers were mainframes with "dumb" terminals and cell phones, the internet and the world wide web weren't yet twinkles in their inventors' eyes. Indeed, though there was strong disagreement at the House hearing last month, the undeniable shortcomings of CCP 18.21 were the one thing on which everybody - reformers, cops and prosecutors - could readily agree. The federal Electronic Communications Privacy Act, written in 1986, is nearly as bad.

Rep. Hughes has been revising his bill to address specific law-enforcement concerns and I understand it will be ready to vote out of committee Thursday. The legislation should receive a welcoming reception on the House floor, where a total of 107 out of 150 members have signed on as supporters. Sen. Hinojosa has already had a hearing on SB 786 and is waiting for the House bill to come over.

See also an item from the Texas Insider published on Friday discussing the legislation.

Criminal-justice committee action this week with time running down

With just a month and a half to go in the 83rd Texas legislative session, this is perhaps the last week where bills heard for the first time in the originating chamber have time to make it through the process. Indeed, one could argue it was last week, but the House in particular has been slow getting legislation onto the floor for votes so bills heard this week could still get in the queue. (House floor calendars so far have been awfully short, with lots of bills backed up in the Calendars Committee waiting for a vote.) With that in mind, let's take a quick look at highlights on criminal-justice related committee agendas this week:

Senate Criminal Justice

SB 1003 by Carona would create an Adult and Juvenile Administrative Segregation Task Force to study ways to reduce use of solitary confinement and provide better services to those in ad seg.

SB 1044 by Rodriguez would allow public defender offices access to DPS criminal history records without a fee. When the companion bill was heard in the House, Rep. Matt Schaefer suggested the same courtesy should be extended to the criminal defense bar.

SB 1448 by Hinojosa would allow courts to enter nondisclosure orders for Class C misdemeanors. The bill analysis says the purpose is to prevent employers from holding convictions for petty offenses against potential new hires.

See the list of bills the committee has voted out so far. N.b., the regular Tuesday meeting has been changed to Wednesday.

House Judiciary and Civil Jurisprudence

SB 825 by Whtimire would disallow the state bar from issuing secret "private" sanctions when prosecutors withhold exculpatory evidence. This is the first senate bill I've seen in a House committee on criminal justice topics. By next week I'd expect quite a few more.

HB 2772 by Justin Rodriguez would require an interim study on judicial selection. Because that issue hasn't been studied nearly enough.

HB 90 by Thompson would create civil liability for media who accept advertising promoting compelled prostitution or individuals who advertise such services on a website.

See a list of bills the committee has voted out so far.

House Criminal Jurisprudence

HB 1069 by McLendon would adjust misdemeanor and state jail felony theft categories upward to account for the effects of inflation, which every year make it a felony to steal less and less stuff. Grits has argued that these theft categories should be automatically adjusted for inflation.

HB 2266 by Larson would allow courts to waive Class C fines for children the same way they do for indigents when alternative means of settling the fine or costs would "impose an undue hardship on the defendant."

HB 2849 by White would adjust graffiti penalties to make more offense a misdemeanor. Graff writers would need to do $3,000 worth of damage to qualify for a state jail felony, increased from the current $1,500 threshold which hasn't been changed since 1993. This is a good idea for the same reasons I support McLendon's HB 1069 - $1,500 worth of property damage in 1993 was a much higher threshold than it is today thanks to the vagaries of inflation.

HB 2579 by Wu would add immigration facilities to the definition of correctional facilities for the purpose of prosecuting certain offenses against people in custody. These facilities hold federal detainees but the state can prosecute such offenses because they're all privately run. Looks like a really good bill to me.

See a list of bills the committee has voted out so far.

House Corrections

HB 686 by Marquez would require new reporting about administrative segregation (bureaucrat-speak for solitary confinement) related to mental health, recidivism and reentry. This would be a helpful bill. When the Lege has taken up ad seg issues in the past they've found a virtual information vacuum on these topics.

HB 1266 by Guillen is a companion bill to SB 1003 described above creating an Adult and Juvenile Administrative Segregation Task Force.

HB 1388 by Workman would allow counties with populations above 335,000 to sentence juveniles to their own post-adjudication facility instead of sending them to youth prisons run by the Texas Juvenile Justice Department. Travis County wants to do this; I'm not sure who else might.

HB 3634 would create an interim task force to study whether to change Texas' definition of "juvenile" to include 17 year olds, an adjustment that would bring us in line with most states as well as federal law. The discrepancy creates near-constant problems, including the elimination by the US Supreme Court of all eligible punishments for 17-year olds convicted in Texas of capital murder.

See a list of bills the committee has voted out so far.

House Homeland Security and Public Safety

HB 730 by Raymond would amend the Occupations Code  to allow law enforcement officers to become certified to use an electromagnetic pulse device to disable electronic systems. Nothing could possibly go wrong with proliferating that technology, right? And Heaven knows TCLEOSE doesn't have enough to do already (/sarcasm).

HB 267 by Miles would require civil service cities (just over 70 departments out of 2,600+ Texas law enforcement agencies) to have a civilian review board with subpoena power to investigate misconduct complaints. Our police union friends will be all over that one.

HB 2897 by Doug Miller would create an "integrated intelligence system" aimed at fugitive apprehension which would "aggregate data from the criminal justice system, commercial sources, and public sources to create an automated predictive process." Fusion centers were supposed to aggregate such information and in practice turned out to be mostly worthless. I wonder why this would be any different?

See a list of bills voted out of committee so far.

These are just a sampling of criminal justice bills that will be heard this week in committee. Click on the committee name to see the full agendas.

TCLEOSE licensed felon who allegedly took cartel bribes, LE agencies faked training

If you've never heard of the Texas Commission of Law Enforcement Officer Standards and Education, with its awkward acronym TCLEOSE, you couldn't be blamed. They're the licensing agency in Texas for state and local cops and enforce police training criteria, but their activities rarely enter the public eye. Lately, though, the agency's oversight or lack thereof has been getting more attention.

Bell County
In February it was reported that the Bell County Sheriff's Office had allegedly faked test results from its training program on a wide scale. TCLEOSE's own inspectors hadn't caught the discrepancy and the agency only took action after receiving an independent report.

Bexar County
The previous month, a former deputy constable from Bexar County Precinct Four was extradited from New Hampshire, charged with "allegedly reporting state mandated training credit for individuals who did not attend the training." The episode received little publicity: A San Antonio TV station covered it but the Express-News did not. WOAI reported that, Parrish "allegedly charged for the courses, and pocketed the cash, while working as a reserve deputy constable with the Precinct 4 Constable's office."

Freestone County
Then last month, reported the Corsicana Sun (March 28) Freestone County Sheriff Thomas Don Anderson and a captain in their department face charges after they allegedly "routinely submitted falsified documents to TCLEOSE claiming that Deputies received law enforcement training when they actually had not attended the training." Said the Sun:

Sheriff Anderson was elected in the 2012 general election and took office in January of 2013, after the previous sheriff, Ralph Billings, retired. At the time of the offenses alleged in the indictments, Anderson was the department's Training Coordinator responsible for the administration of all training at the Freestone County Sheriff’s Office and Travis Robertson was the primary instructor for most of the training given by the Freestone County Sheriff’s Office.

See a TCLEOSE press release about the Freestone County officials who will be prosecute by the Travis County Public Integrity Unit in Austin.

Starr County
Just as disturbing, though unrelated to training, in March Starr County Sheriff's Capt. Romeo Javier “Compadre Nacho” Ramirez pled guilty to accepting $30,000 in bribes from the Gulf Cartel in exchange for transmitting sensitive law enforcement information, reported the McAllen Monitor. But there's also a TCLEOSE angle: It turned out he had a prior felony conviction from the '90s that should have barred him from ever receiving a peace officer's license. Notably, this is the same jurisdiction where former Starr County Sheriff Reymundo Guerra was convicted in 2009 of assisting drug traffickers. Ramirez at the time was in charge of running the Starr County Jail. See a copy of his federal indictment (pdf).

* * *

The training episodes follow a common theme: Training was reported that officers never received. Intentional fraud like that would be hard to catch via after-the-fact auditing procedures, particularly at smaller agencies. In some ways, such oversight lapses are understandable. Delivery of training is highly decentralized, there are more than 2,600 law enforcement agencies in the state of Texas, and TCLEOSE doesn't remotely have the staff or resources to provide comprehensive oversight. The failure to catch Ramirez's felony conviction in his background check, though, is harder to justify.

Looking at legislation filed related to the agency, no bills pending at the Texas Legislature would address the questions raised by these episodes, though both the House and Senate budgets include six more FTEs (full-time equivalent staff) than the agency had in the last biennium, bringing the total number of employees to 43.6. Perhaps the additional hands on deck will help TCLEOSE get in front of some of these problems.

MORE: A commenter points out that the Panola County Sheriff, a former TABC agent elected last year, was arrested in March for allegedly using money from a confidential informant fund to pay for his attendance at a new sheriffs school after the county refused to pay for the expenditure. Not exactly a TCLEOSE oversight issue, but related enough to mention.

AND MORE/CLARIFICATION: On Tuesday, TCLEOSE executive director Kim Vickers offered clarification regarding two of these cases. Grits commenters had asked why the Freestone Sheriff was indicted but the Bell County Sheriff was not. Vickers said the allegations in Bell County involved administrative violations stemming from the training coordinator allowing officers to do take-home tests instead of proctored exams. In Freestone, though, TCLEOSE has alleged straight up fraud, asserting that the Sheriff added names to lists of trainees who never participated in training at all. That's why the cases were handled differently, he said.

On Capt. Ramirez out of Starr County, the McAllen Monitor reported that TCLEOSE had improperly granted him a license despite a prior felony for which he'd received deferred adjudication. But Ramirez was licensed in 1999, said Vickers, and until 2001 when the law changed, officers could be licensed with a deferred felony conviction on their record. He said he'd seen other instances where he'd scratched his head and wondered how an officer was licensed but in this case there would have been no bar to making Ramirez a peace officer at the time he was commissioned. (Either way, given his guilty plea for taking drug-cartel bribes, his badge-wearing days are now over.)

Vickers also mentioned another case out of Alpine last year where a training coordinator based at Sul Ross University had allegedly assisted officers with exams, resulting in five currently pending felony indictments. He said that episode taught the agency that training coordinators should not also be proctors during testing.

Odds and Ends: Innocence, grand juries, union politics, and prison YIMBYs

Here are a few odds and ends that caught Grits' interest this week but did not make it into independent posts:

House should pass Senate reform measures
The Austin Statesman has an editorial about three commendable reform bills passed by the Texas Senate - discovery reform, habeas reform, and making sustained state bar complaints over Brady violations public - that deserve passage in the House, preferably quickly before some unforeseen meltdown occurs. Relatedly, a Texas filmmaker is working on a documentary about Dallas-area exonerees working to reform the justice system.

Say 'no' to secret tribunals
Big Jolly has a followup post to this Grits missive on a bad bill to keep grand jurors names permanently secret.

School cops lead to criminalizing nonviolent student behavior
The National Rifle Association has responded to school shootings in Newtown, CT and elsewhere by arguing for more armed police officers in schools. Using Texas as an example, this New York Times story contends that the biggest effect of stationing police officers in schools "has been a surge in arrests or misdemeanor charges for essentially nonviolent behavior — including scuffles, truancy and cursing at teachers — that sends children into the criminal courts." Further, “There is no evidence that placing officers in the schools improves safety,” said Denise C. Gottfredson, a criminologist at the University of Maryland who is an expert in school violence. “And it increases the number of minor behavior problems that are referred to the police, pushing kids into the criminal system.” See more from Unfair Park.

Deputy union reps fired, retaliation alleged
Allegedly the Nueces County Sheriff demoted then fired two union reps in retaliation for their endorsing his opponent. The Corpus Christi Caller Times story has links to original complaints from lawsuits the two men filed in response. Sounds like quite a mess.

Innocence and arson forensics
See a story from Popular Science about evolving arson science and actual innocence cases, focusing on the story of an Arizona man who was released 42 years after a wrongful conviction based on a fundamentally flawed, erroneous arson investigation.

You get what you pay for: Prison data edition
Rep. Four Price wants to amend the Texas Department of Criminal Justice Sunset bill to require data sharing architecture between TDCJ, the parole board, the Windham School District and correctional managed healthcare, contending that "The right hand doesn't know what the left hand is doing." Ana Correa of the Texas Criminal Justice Coalition says this won't be free, as the Fiscal Note maintains, and that TDCJ does not have the capacity to do this in house.

The Romeo and Romeo defense
Senate Criminal Justice Committee Chairman John Whitmire's bill passed out of committee this week extending the "Romeo and Juliet" defense to the crime of "indecency with a child" to same sex partners. The Austin Statesman called it "gay rights" legislation and quoted an audience member who didn't testify but "fumed" outside the hearing about the "gay liberal agenda." That said, Grits wouldn't characterize this as a "gay rights" issue in the same way one might espouse the right to gay marriage, for example - a seemingly pointless parallel drawn in the article. There are no new "rights" being bestowed here, just an acknowledgement of reality. The only reason to oppose this bill is as a back-door means of criminalizing youthful gay relations, since after Lawrence v. Texas the state can't criminalize homosexuality in general.

Prison oversight bill in trouble
Star-Telegram columnist Bob Ray Sanders says prison oversight legislation (HB 877) is probably dead.

Prison YIMBYs
See a story out of Mineral Wells about local officials fighting to keep a private prison unit there open. The Texas Senate passed a budget which would close the facility while the House budget would keep it open.

Don't blame me, I voted for Charlie Baird
Travis County DA Rosemary Lehmberg was arrested for DWI last night.  Following the infamous Nestande case, with all the current demagoguery in and around Austin vis a vis DWI, this will get particularly ugly, I suspect. Good luck, Rose, you'll need it.

'How wireless carriers are monetizing your movements'
Reported the MIT Technology Review, "a growing number of mobile carriers are now carefully mining, packaging, and repurposing their subscriber data to create powerful statistics about how people are moving about in the real world." This illustrates how historical location data from cell phones is only getting more precise.

Discovery reform passes Senate with defense bar on the sidelines

The so-called "Michael Morton Act" (SB 1611) related to discovery in criminal cases passed the Texas Senate yesterday. See mostly laudatory coverage from the Austin Statesman, the Dallas News, and the Texas Tribune. Here's the text of the version that passed the Senate.

Last week Grits mentioned that a proposed gag order related to information released by state - the brain child of state Sen. Joan Huffman - was the last stumbling block in negotiations. That's now out of the bill and a much weaker prohibition on defense disclosure to third parties has taken its place. This portion of the statute promises to be a source of great confusion. Houston criminal defense attorney Paul Kennedy suggested on his blog the bill would "seem to bar defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense." I'm not a lawyer, but I don't think that's correct. (See subsections e, f, and g in the bill text for restrictions on what the defense can share.)

For starters, he should have added a caveat that the legislation allows defense counsel to report alleged official misconduct to an "administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint." Of course, complaints to the state bar are secret and, when filed against prosecutors, rarely upheld. So that's not a meaningful substitute for press scrutiny, which has done more to rein in prosecutor misconduct than any "administrative, law enforcement, regulatory, or licensing agency" you could possibly name.

But it further overstates matters to say that the bill would "prevent the defense from providing information to the press regarding any issues of misconduct ... if that information was obtained through the discovery process." As I read it, the bill would only prohibit releasing the name and identifying information of victims and witnesses disclosed by the state, and then only if that information had not already come out in public documents or discussions in open court. Beyond that, subsection g specifically declares that "Nothing in this section shall be interpreted to limit an attorney's ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct." (See Rule 3.07 for the parameters of allowed communication.)

For the most part, the name of the victim and key witnesses will already be in arrest or search warrant affidavits, be discussed in pretrial hearings, or otherwise become known in the course of court proceedings. There may be circumstances where the prohibition on revealing a hitherto un-released witness name could be problematic, but in routine matters it shouldn't come into play too often. Otherwise, the bill explicitly protects the ability of attorneys to speak publicly about their cases just as they've always done. Sen. Royce West confirmed that through questions to Sen. Huffman on the floor about her amendment nailing down her legislative intent. These modest limits are far from a blanket prohibition on sharing information with the press.

On the upside, Kennedy pointed out that the bill provides more disclosure than required by federal court precedents, exclaiming that "while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment." Still, he lamented, "we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement."

Notably, the Texas Criminal Defense Lawyers Association wasn't at the table when the final deal was struck. Said the Statesman, "Wednesday’s intense negotiations — including not-so-gentle prodding by [Lt. Governor David] Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation." The Trib recorded that negotiations "included Morton, [his lobbyist Thomas] Ratliff, the state prosecutors association, Huffman, Duncan and Sens. John Whitmire and Royce West." It's telling that the prosecutors' association was in the room but TCDLA was not. Watching the defense bar engage on this issue has been like watching a checkers player take their first stab at chess in a competitive tournament.

This bill is now a lot better than prior versions, though Grits would like to see sanctions installed for prosecutors who fail to follow the new rule. Perhaps that's something that could get tacked on on the House side.

Electronic privacy roundup

Here are several national electronic privacy stories that relate to presently pending Texas legislation.

Bill creating loophole in Rules of Evidence would cause more false convictions

Legislation has passed the Senate that Grits hopes will die the same quiet death in the House Criminal Jurisprudence Committee that it did last session. SB 12 by Sen. Joan Huffman, an idea which Grits has criticized before, would upend Rules 404 and 405 of the Texas Rules of Evidence in trials of alleged child molesters, allowing evidence of past offenses, even episodes where the defendant had never been indicted nor convicted, in lieu of provable facts in the case in which they're charged. The bill sailed through the Senate relatively early this year and yesterday the companion bill was heard in the House Criminal Jurisprudence Committee. (Go here to listen to the hearing, beginning about the 52:00 mark. The Texas Tribune has a brief writeup. See also excellent Houston Chronicle coverage of last session's version.)

In the past, I've compared the philosophy behind this bill to the Vichy policeman in the movie Casa Blanca who declared, "Round up the usual suspects!" If you were guilty before, obviously you must be guilty this time. The bill analysis says the legislation would "provide prosecutors with a much needed tool" to win cases, but a prosecutor's duty is to seek justice, not convictions.

Rule 404 declares that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity" with the prosecutor's theory of the crime. Justin Wood of the Harris County DA's office said the bill would "work alongside" Rule 404, but it strikes me as more creating a massive loophole.

The American Bar Association opposed a similar federal rule when it was enacted in 1994, noted David Gonzalez of the Texas Criminal Defense Lawyers Association, arguing that allowing in evidence of prior bad acts would prejudice the jury. Interestingly, Gonzalez added that the only time this rule comes into play in federal courts is on Indian reservations.

TCDLA's Kristin Etter declared that the bill "will undoubtedly lead to more wrongful convictions in Texas," noting that most of Texas DNA exonerees were convicted of sex crimes. She noted that Texas penalties for sex offenses are immense so the stakes are particularly high for an innocent person convicted of these sorts of offenses. As the Tribune recorded, "The a lack of physical evidence in the cases, she reminded the committee, 'cuts both ways.' It makes it more difficult to convict someone, but it also makes it more difficult for innocent people who have been convicted, because there is no DNA evidence to help clear their names." Excellent point. The exchange made me think of the poor women wrapped up in the San Antonio Four case, where one of the now-grown child victims has recanted and flawed forensics were apparently presented at trial. IMO Etter nailed it. This bill amounts to asking for more false convictions.

Though not a sure thing, the bill looks like it may have the juice to make it out of committee. Vice Chair Stefani Carter appeared ardently supportive and Reps Leach and Toth on the committee are joint and co-authors, respectively. That said, Rep. Terry Canales asked good questions and clearly was highly skeptical, but it's hard to tell which way other members were leaning, several of whom were not in the room.

Lege focused on least-bad band aids on mental health, competency and jails

At the Texas Tribune, Brandi Grissom has an item (published a week ago on their Texas Weekly subscription site) about a pair of bills addressing competency restoration in county jails, legislation that Grits had discussed the day before. One minor quibble: Grissom described Rep. Zerwas' and Sen. Duncan's bills as "companions" (i.e., identical bills filed in both chambers), but that's not quite accurate. They're not listed as companions on the capitol website. As I read it, Duncan's bill creates a two-county pilot, while Zerwas' legislation sets a more generalized rule allowing counties to perform competency restoration in jail (through the local mental health authority or a provider they help select) instead of at the state hospital.

Normally I'd say performing mental health treatment in jails instead of hospitals is a bad idea. But because incompetent defendants, including those only charged with misdemeanors, are spending many months in jail on waiting lists for state hospital beds to open up, providing mental health services while in lockup amounts to the least bad option. As Grits wrote last week, both bills are band-aids and by no means a substitute for an adequately funded community mental health system. Clearly the Texas Legislature won't provide adequate funding on their own (not in this session's budget, anyway), so the question becomes whether courts will at some point force them to spend more money treating incompetent, mentally ill defendants awaiting trial. The state lost the first round in the courts and pending litigation on the subject will likely be resolved, one way or the other, by the time the Lege meets again in 2015.

Bills in Senate, House take opposite tacks on grand jury transparency

Cynics have long maintained that prosecutors could get the typical grand jury to indict a ham sandwich, implying they're essentially in the pocket of the District Attorney and unlikely to supply a legitimate barrier to wrongful indictments. But if SB 834 by state Sen. Craig Estes passes, it will eliminate the last vestige of public accountability and leave grand juries in Texas wholly anonymous, secret tribunals by permanently making juror names a closed record, even after the grand jury's work is complete. The Senate Criminal Justice Committee approved the measure yesterday.

Grand juries are almost completely secret right now. Unless someone shows up at the swearing-in ceremony, the public can't know who is on a grand jury until after its work is concluded, and then under current law all that's released are their names. Estes' bill would make even that information closed for reasons that completely elude me. IMO that will only further contribute to the perception that grand jurors are in the pockets of prosecutors and erode public trust in the process even further.

Making grand juror names secret means if there are improper relationships between grand jurors and judges or prosecutors they can never become known. If the same grand jurors are appointed repeatedly by the same judge - which happens - and other worthy applicants are excluded, such discrepancies could never become known. Or, if a grand juror has personal, familial or professional relationships with a defendant and the prosecutor doesn't catch it in the vetting process, the media and outside watchdogs could not have any means to make such a connection later if names never become public.

Last year, when a "rogue" grand jury took it upon itself to investigate (and ultimately no-bill) alleged improprieties at the Harris County DA's office, observers were able to draw important connections between the grand jury foreman and the political opponent of the incumbent. That cast light on potential motives of those driving that highly politicized process and an important public interest was served by the information becoming public.

If the grand jury system - which already provides little if any restraint and generally serves as a rubber stamp for whatever decisions prosecutors have already made - becomes a complete secret run by anonymous members whose names will never be released, IMO they should probably just scrap it as farce and a waste of time. Right now, perhaps it's true prosecutors can get grand jurors to indict a ham sandwich. But if we can't know who approved (read: rubber stamped) prosecution decisions and 97% of cases end in plea bargains, it become increasingly difficult to tell if there's any meat in the sandwich at all.

At trial, jurors serve in public and after the fact may be interviewed and openly discuss the cases they consider - why shouldn't grand jury members be allowed to do the same? Not only is permanent secrecy about identity unnecessary after grand jury service is over, so is the gag order under current law that forbids grand jurors from discussing their deliberations. After all, with so many convictions resulting from plea bargains instead of jury trials, in most instances grand jurors are the only citizens who will have ever considered evidence against the defendant outside the prosecutor's office. Secrecy turns grand juries supposed oversight into a black box: Making names of grand jurors permanently closed records would eliminate the last, tiny window into the box and finally moot the institution in the public eye as a legitimizing force for prosecution decisions.

Relatedly, though headed in the opposite direction, yesterday the House Criminal Jurisprudence Committee heard HB 3334 by Rep. Bryan Hughes which would increase accountability of grand juries by requiring that their interviews with all witnesses be recorded, not just defendants. IMO that's a great idea and Grits would go one step further: Those recordings and/or transcripts should become public records at some point after the grand jury's term is complete, or at a minimum on a case by case basis before any plea bargain or trial. I've often thought the grand jury's vetting role would be performed more diligently if prosecutors and jurors knew that everything said and done in the grand jury room could be scrutinized later.

MORE: In the comments, a reader points to important public-interest stories from the Denton Record Chronicle (pdf) and the Houston Chronicle that would not have been possible if Sen. Estes' secrecy bill were the law of the land.

AND MORE: (4/12): From Big Jolly.

Historical data needs protection as cell-phone location tracking moves indoors

At recent hearings regarding whether law enforcement should have to get a warrant for cell-phone location tracking, police from Dallas and Houston as well as an ostensibly (if not actually) neutral witness from the US Marshal's Service claimed that historical location data should not require a warrant because it is relatively inaccurate. At the House panel in particular that suggestion was rebuffed by the 2009 example of Malte Spitz, a German politician who sued for access to his cell-phone location data and collaborated with a newspaper to generate this graphic tracking his every move for six months. In general, though, it turns out the notion that historical location data is inaccurate was an ill-timed argument. In the past month, a flurry of new developments have shown location data is rapidly becoming more accurate than ever, particularly a new study showing cell-phone users can be identified via location data using relatively few "pings."

Now, this week's IT news features discussion of emerging "indoor location tracking" by smart phones that in the near future will provide ever-more precise location data on anyone carrying one:

• Don Dodge: Why Indoor Location will be bigger than GPS or maps and how it works
• Don Dodge: Leaders in Indoor Location technology
• Thomas Claburn, InformationWeek: Indoor Location Tracking Has Lost Common Sense

Claburn's piece is the only critical item of the bunch, pointing out that, "this technology isn't really for consumers. It's for businesses, so they can track you and glean more data about what you're looking at, where you're going, how long you spend in a place and so on." He could have added that it's also for law enforcement, which makes thousands of requests for cell-phone location data every day - more every year as the technology becomes more ubiquitous and precise.

Most discussions of location tracking at the Texas Legislature have been about either GPS, which doesn't work indoors or when line of sight to a satellite is blocked, or cell-phone tower triangulation, which generally does work indoors but in some circumstances is less accurate. Increasingly, though, both those methods are being enhanced by an array of technologies that collaborate to generate extremely accurate tracking data. Find below the jump an expurgated version of a startling list compiled by Mr. Dodge of some of the means being used to make location tracking data more accurate in the next few years, even indoors.

If it ain't broke ... no need to expand wiretap authority to local PDs

Grits has already decried the pointlessness and potential pitfalls of SB 188 expanding the list of Texas law enforcement agencies authorized to perform wiretapping to include the larger municipal PDs. That bill has now come over from the Senate and been referred to the House Criminal Jurisprudence Committee. Let's hope, in that small-government bastion, proposals to expand the surveillance state won't go over quite as easily as in the Texas Senate. Rep. Allen Fletcher is carrying the House companion.

Local control has its place but IMO the proliferation of invasive surveillance technology isn't one of them. Presently, the Department of Public Safety is the only non-federal agency authorized to perform wiretaps in Texas and from 1997 to 2011 (see the annual reports), they were never asked to do so more than five times in a year, a high set back in 1998. Some years, as in 2009, the number was zero. (See the chart in this post.) Though I understand through the rumor mill 2012 saw a bump (the data has not yet been reported publicly), the bottom line is Texas prosecutors seldom request wiretaps. Bill proponents are full of stories about dangerous Mexican drug cartels, but surprisingly short on examples when they needed a wiretap and DPS or a judge wouldn't oblige them. There's just no documented need to expand the number of agencies performing wiretaps.

To me, it's better to keep wiretapping authority in one place - at DPS - to make it easier to regulate. For that matter, the same can be said for use of Stingrays and similar fake cell-tower devices - which employ man-in-the-middle attacks on cell-phone customers and essentially intercept their signals. Just like wiretapping equipment, state law should limit those tools to DPS and let the locals call in the state police - with a judicial order in hand - if and when they need that functionality. If the practice becomes decentralized, with local agencies training their own personnel to operate invasive surveillance equipment, the potential for abuse grows as does the difficulty of exercising meaningful oversight. The volume of wiretapping work just isn't high enough to warrant changing the law. If it's needed, let DPS do it.

Mexican amparo writ expands post-conviction rights beyond habeas

You learn something new every day. Grits has for some time been interested - in part out of professional necessity working for the Innocence Project of Texas - in the inner workings of the habeas corpus process in Texas, in other jurisdictions, and for that matter historically. However I was unaware before now that under Mexican law and in several other Spanish-speaking countries there is a post-conviction writ in addition to habeas corpus called the writ of amparo or el "Recurso de Amparo," which protects a separate and distinct category of rights. Mexidata.info published an item from the Mexican president's office promoting a revamp of the rules titled, "Mexico Outlines its New Writ of Protective Injunction Law." According to that source:

The week ahead in Texas criminal-justice related committtees

There's a full-plate of criminal justice related bills up this week in a variety of committees and complete agendas for individual committees are hyperlinked under each panel's name, but let's run through a small number of highlights that jumped out at me:

Senate Criminal Justice Committee

SB 991 by West would narrow eligibility for medical parole. Important issue; this bill may not be the solution. (Ed. note: corrected from the original; h/t to Brian McGivern).

SB 834 by Estes would make the names of grand jurors permanently secret. The bill analysis says the feds already do it that way, so must be a good idea, huh? What's a secret tribunal or two among friends?

SB 1316 by Whitmire is an excellent, common sense bill to extend the "Romeo and Juliet" defense for indecency with a child to same-sex partners. Good for him.

While we're on this committee, see Jordan Smith's coverage of a good bill related to professionalizing police evidence retention which was referred here and deserves prompt consideration.

Senate Judiciary

SB 915 by West would allow juvenile records to be sealed automatically when the youth reaches 17 as opposed to 19 under current law.

House Criminal Jurisprudence

Rep. Senfronia Thompson's HB 990 creating a sentencing council has already been mentioned.

HB 2653 by Allen and HB 2803 by Toth/Burnam are both modest probation reforms, with the latter including a hammer at the end for fourth-time state-jail drug offenders.

HB 3334 by Hughes would require recording of all witnesses questioned by a grand jury, not just the defendant. Why not?

HB 2988 by Canales is a crackerjack bill related to disclosure of exculpatory evidence by prosecutors, creating a proactive duty to hand over both exculpatory and impeachment evidence. My favorite part:

not later than 30 days before a trial is scheduled to commence for an offense other than a misdemeanor punishable by fine only, the court shall require the attorney representing the state to affirm in open court that the attorney has:

(1)  been diligent in identifying any exculpatory or impeachment evidence that is material to the defendant's guilt or punishment and in the possession of or otherwise known to any peace officer, investigator, or other individual involved in the investigation or prosecution of the case; and
(2)  provided all evidence described by Subdivision (1) to the defendant and the defendant's attorney, regardless of whether the defendant has made a motion under Article 39.14.

House Corrections

Will hear the TDCJ Sunset bill on an otherwise short agenda.

House Homeland Security and Public Safety

HB 3672 by state Rep. Allen Fletcher would require that members of the Public Safety commission to maintain secret-level federal security clearance. Perhaps they should also get shoe-phones like Maxwell Smart.

HB 375 by Ryan Guillen would let the State Board of Veterinary Examiners have its own law enforcement wing with guns and badges, etc.. Perhaps this development will give Jim Carrey's Ace Ventura: Pet Detective franchise a shot in the arm, or even spawn a reality TV version.

HB 1656 by Eiland/Zerwas would create a $5 surcharge on moving violations to pay for indigent EMS services.