Wednesday, October 01, 2014

'Meet the Smart on Crime Coalition," and other stories

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

Meet the 'Smart on Crime Coalition'
Check out the website of the new "Texas Smart on Crime Coalition" which includes the Texas Association of Business, the Texas Public Policy Foundation, the Texas Criminal Justice Coalition, ACLU of Texas, and Goodwill.

'Codifying the Rule of Lenity'
The Texas Public Policy Foundation has a new report out with the same title as this subhed. TPPF's Marc Levin recently authored a column arguing that the rule of lenity should apply in Gov. Rick Perry's recent indictment and suggesting the Legislature should bolster it via statute.

Morton, Scheck interviewed
Check out an interview with Michael Morton and Barry Scheck filmed at the LBJ School earlier this week. The two men also attended a press conference today at the capitol with state Sen. Rodney Ellis calling for expanded access to DNA cases, an issue I thought had been resolved in 2011 but which the Court of Criminal Appeals has revived with a ruling earlier this year denying testing in a capital case.

'Myths and Facts of Pretrial Justice'
See a video lecture from the University of Houston titled, "The Myths and Facts of Pretrial Justice"

Former SCOTX Chief Justice takes on indigent court costs
Bully for former Supreme Court Chief Justice Wallace Jefferson for taking on the issue of waiving court costs for the indigent in family law cases in a Tarrant County lawsuit. IMO Jefferson  was arguably the best appointment Rick Perry made over the last decade.

The Trial Penalty
The general counsel for Families Against Mandatory Minimums had a column in Forbes last week titled, "Wanting a trial by jury is not a crime so why do we treat it like one?"

Adios, American Judicature Society
Sorry to hear the American Judicature Society is closing its doors, though I understand the reasons. They had a good run.

Judge: Texas open records law applies to private prisons

Travis County District Judge Gisela Triana last month ruled that the Texas Public Information Act applies to private prison records, reported the blog Texas Prison Bidness. The case arose out of a lawsuit filed by Prison Legal News. This is a big deal.

Does retaliation explain mentally ill Harris County inmate jailed amidst filth, feces?

Hard to stomach recent reports by KTRK in Houston that "A Harris County jail inmate, jailed on a marijuana charge while on probation and in need of mental health care, was left in his cell for weeks without being let out, living amid heaps of trash, swarms of bugs, and piles of his own feces." 

The Sheriff told the Houston Chronicle the episode was a one-off. But that doesn't jibe with KTRK's report that, "According to interviews with whistleblowers, many officials in the jail knew about the cell and its condition, including at least three lieutenants, one captain, one major and two chief deputies, including Chief Deputy Fred Brown, who oversees jail operations." A Texas Commission on Jail Standards inspection on Monday did not find the situation replicated.

The jail shouldn't be run that way, but the courts and defense counsel in the case may also share some blame: Terry Goodwin was arrested for marijuana possession but remained in jail for two months after his marijuana case was dismissed for reasons nobody can apparently explain, reported the Chronicle. Then "he was charged with assaulting a detention officer, a felony, by striking the jailer with his hand." He's now serving a three-year sentence in TDCJ for the assault with credit for time served.

One wonders if Goodwin's treatment, rather than reflecting general problems at the jail, resulted from retaliation by the guards and supervisors for assaulting a jailer? That scenario to me makes more sense of the facts than the notion that this was a mere oversight, especially if all those folks up the chain of command were aware of the situation. This one may require a particularly thorough housecleaning among HCSO brass if that turns out to have been the case.

New Harris DA program keeps pot smokers out of jail

Further evidence that Texas is rethinking its approach to small-time marijuana cases:

Harris County District Attorney Devon Anderson has announced a new diversion program for Class B misdemeanor marijuana cases (possession of up to 2 oz) for first-time offenders. See her press release.

Instead of being arrested, "Individuals who are detained by the Houston Police Department or Harris County Sheriff’s Office will be taken to a substation to confirm their identity and to be fingerprinted and then will be offered the First Chance Intervention Program."

Then, "Depending on a short evaluation, individuals will either have to complete eight hours of community service or an eight-hour class and the program will either last 60 days or 90 days." Also, "Individuals arrested by other law enforcement agencies for possession of up to 2 ounces of marijuana will be offered the program in court." Non-compliance will result in an arrest warrant.

Your correspondent has mixed feelings about this. I'm glad for a program that keeps pot smokers out of jail. The majority of the 43,000+ Class B misdemeanor cases in Harris County last year were for pot possession, according to Anderson's press release. But this does seem to substitute a prosecutor's discretion for judicial oversight in a way that poses significant due process questions. It's not like arrestees will be appointed counsel at the police substation.

Plus, folks still will be hauled off in handcuffs, even if they don't spend time in jail. I'd prefer Anderson had convinced HPD and the Sheriff to use their authority to issue citations for these cases instead of arresting people. Her Democratic opponent in November, Kim Ogg, has advocated that approach.

Indeed, given my druthers, Grits hopes the Legislature simply reduces low-level pot possession to a Class C or civil penalty in the coming session before any of the potential due process issues come to a head. In the meantime, this should reduce jail crowding and indigent defense costs.

Perhaps the most interesting aspect of the DA's decision is the extent to which the terms of debate over marijuana have radically shifted, even among tuff-on-crime conservatives like Anderson. Big ships turn slowly so it's significant to find a bipartisan consensus among DA candidates in the state's most populous county that jailing pot smokers is a waste of time and resources.

The case against permanently sealing pen-register orders

The Wall Street Journal has been litigating in Texas to gain access to sealed, federal judicial orders granting the government electronic surveillance authority, the paper reported today ("Long-term secrecy surrounds electronic monitoring," Oct. 1). The article opened:
A federal judge's recent unsealing of a secret government request for electronic monitoring shines a light on how such applications are kept hidden from the public long after criminal cases that result from them are closed.

The Sept. 2 order, by U.S. District Judge Nelva Gonzales Ramos, came after Dow Jones & Co., publisher of The Wall Street Journal, filed motions in a Texas federal court to unseal 14 cases as part of an investigation into the confidentiality of such surveillance applications.

The unsealed request for monitoring, involving a drug-trafficking case, was filed on Oct. 30, 2007. It sought approval for a "pen register," a common surveillance tool that records dialed phone numbers and Internet addresses. The subject named in the application pleaded guilty to conspiracy to engage in money laundering and was sentenced in 2012 to two years, nine months in prison.

As more people use cellphones and email, prosecutors increasingly are using tools for monitoring those communications in criminal investigations. Federal courts allowed a pen register 18,760 times in 2012, more than triple that in 2003, Justice Department data show.

The government also routinely asks that the applications for such matters be sealed, a move that ends up keeping documents permanently secret in courts across America. Though judges have long kept matters from the public in national-security cases and continuing probes, the spreading move to permanent secrecy of more commonplace criminal cases contradicts a long U.S. tradition of open courts, according to some legal specialists.

"The broader message here is that the government is keeping stuff sealed too long even if it had a basis for sealing stuff initially," said Brian Owsley, a former magistrate judge who initially sealed the Texas case at issue and now is an assistant law professor at Indiana Tech Law School.
I met Judge Owsley at a conference on electronic surveillance last year, and Grits has pointed to Judge Owsley's writing on related topics. He was the first to alert me to this issue of permanently sealed federal surveillance orders.

As it turns out, Texas law poses the same conundrum. Sec. 2(g) of Art. 18.21 of the Code of Criminal Procedure tells judges they "shall seal" such orders with no provision for their unsealing. (State Rep. Bryan Hughes' HB 1608 last session would have changed that "shall" to a "may" and limited the extent to which such orders could be routinely kept secret, requiring that prosecutors show good cause to justify sealing the documents beyond 180 days.)

So this isn't just a federal issue. Indeed, unlike the feds, Texas doesn't even have good data. Office of Court Administration reports record how many search warrants judges issue but don't track lesser orders for pen registers, cell-phone location data, and other personal phone information collected under Art. 18.21.

Also unlike the feds, state courts haven't seen an aggressive media outlet pursue the story the way Wall Street Journal reporters have done. But a quite similar story is waiting to be written regarding pen-register orders Texas state courts if journalists and editors were of a mind to do so.

Upcoming crimjust Lege hearings

There are four criminal-justice themed committee hearings next week in the Texas House of Representatives that may merit Grits readers' attention (links go to the agendas):

House Criminal Jurisprudence (Oct. 7, 10 a.m.): Regulating sale of criminal histories; consideration of crimes outside the penal code in terms of mens rea and the rule of lenity; expunction and non-disclosure orders; the effectiveness of graffiti laws; and the effectiveness of state jail system and the use of probation for state jail felonies.

House Homeland Security and Public Safety Committee (Oct. 7, 2 p.m.): Will hear an interim charge related to emergency planning and receive updates on border security operations, the aftermath of the West fertilizer plant explosion, and draft legislation on the Driver Responsibility Surcharge.
House Corrections (Oct. 8, 10 a.m.): "Assess the impact of school discipline and school-based policing on referrals to the municipal, justice, and juvenile courts, and identify judicial policies or initiatives designed to reduce referrals without having a negative impact on school safety."

House Corrections (Oct. 8, 1 p.m.): Evaluate facilities, programming and reentry services at the Texas Juvenile Justice Department.

Tuesday, September 30, 2014

Do sweltering Texas prisons violate international human rights standards?

This morning I received a press a press release from UT Law School's Human Rights Clinic related to the Inter-American Commission on Human Rights'  announcement that it "will hold a hearing in Washington, D.C. on October 27, 2014 regarding Texas' violation of prison inmates' human rights by exposing them to dangerously hot temperatures. The IACHR is an independent organ of the Organization of American States, whose mission is to promote and protect human rights in the Western hemisphere." Find the full text of the press release below the jump:

'Brady's Blind Spot: Impeachment evidence in police personnel files'

Here's an academic article by Stanford law prof Jonathan Abel titled, "Brady's Blind Spot: Impeachment evidence in police personnel files and the battle splitting the prosecution team." It reminds me of debates surrounding the newly implemented Michael Morton Act in Texas, which bolstered defense counsel's access to prosecutors' files. Prosecutors have complained of extra expense and hassle involved in making their files available. But less attention has been paid to the fact that - particularly in the case of impeachment evidence  - that there's a gaping hole in the discovery process when it comes to police misconduct. Here's the abstract from the paper:
The Supreme Court’s pronouncements in Brady v. Maryland and its progeny place a constitutional obligation on prosecutors to disclose any evidence that would be favorable and material to the defense. But in some jurisdictions, even well-intentioned prosecutors cannot carry out this obligation with respect to one critical source of impeachment material: police personnel files. Such files contain invaluable material from internal affairs investigations and disciplinary reports — information that can destroy an officer’s credibility and make the difference between a defendant’s acquittal and conviction. But, while some jurisdictions make these files freely accessible, others employ a welter of statutes and local policies to keep these files so confidential that not even the prosecutor can look inside them. And, even where prosecutors can access the files, police officers and unions have used litigation, legislation, and informal political pressure to prevent prosecutors from disclosing Brady information in these files. While suppression can cost defendants their lives, disclosure of this information can cost officers their livelihoods, as "Brady cops" may find themselves out of work and unemployable.

Using original interviews with prosecutors, police, and defense attorneys, as well as unpublished and published sources, this Article provides the first account of the wide state-to-state disparities in Brady’s application to police personnel files. The Article argues that the widespread suppression of material in these files results not simply from prosecutorial cheating, but from the state statutory and local institutional constraints that give society’s imprimatur to the withholding of Brady material. It further challenges the doctrinal assumption that prosecutors and police officers form a cohesive "prosecution team," and that, in the words of the Supreme Court, "the prosecutor has the means to discharge the government’s Brady responsibility if he will" by putting in place "procedures and regulations" to bring forth any Brady material known to the police. Finally, the Article contends that the confidentiality these files currently receive is not only undeserved as a normative matter, but also incompatible with core tenets of the Brady doctrine.
The article provides a good discussion of the issues, but regrettably fails in its survey of states to comprehend the two-tier structure of police personnel files in Texas, mistakenly claiming they're always subject to state open records law, which is false. "That these records are public removes the obligation on the prosecutor to discover and disclose them under Brady," Prof. Abel opined

But in cities which have opted in to the state civil service code (Ch. 143 of the Local Government Code), most of the file is secret so that argument doesn't hold water.

It's true, for most of the state's 2,600+ law enforcement agencies, police personnel files are available through an open records request. But about 73 law enforcement agencies have adopted the state civil-service code (most of them many decades ago in the '40s and '50s before police unions won the closed records provision at the Lege in 1989), including three of the state's five largest cities and many of the larger, regional population centers.

In those cities, disciplinary records are governed by Ch. 143 of the Local Government Code instead of the open records act. That statute lets civil service cities keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined only as suspensions or demotions), and closed files that include most workaday disciplinary violations, reprimands, reassignments, and arguably other information that should be turned over to the defense under Brady v. Maryland and/or the Michael Morton Act.

Your correspondent has long held that if cities like Dallas and El Paso, which have not adopted Ch. 143, can operate with police personnel files as open records, that's a clear indication that secrecy is unnecessary and unwarranted in civil-service jurisdictions. This article provides additional ammunition to bolster that case from both normative and legal perspectives.

Similar concerns to those described in the article regarding impeachment material in police personnel files were raised in May at the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit in the context of implementation of the Michael Morton Act. Judge Barbara Hervey pledged to explore the issue further at a future meeting of the court's Integrity Unit.

Regular readers know I think it's too early for the Lege to revisit the Michael Morton Act in 2015. I've argued that, "The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking." But if the Legislature does decide to revisit the issue, bolstering defense access to impeachment material in Ch. 143 personnel files should be near the top of the list of issues to correct.

Indeed, the best solution wouldn't require messing with the Michael Morton Act at all: Just eliminate closed records provisions in the civil service code and have all police departments play by the same rules. That would improve accountability and relieve prosecutors of the burden of searching civil service files to which they don't have access. Bottom line: The state should never have closed those files in the first place.

Friday, September 26, 2014

Secure Communities program not making communities safer

One of the first comprehensive statistical analyses of the federal Secure Communities program - which engages local jailers as immigration agents to deport immigrants accused of crimes - found that the program "led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime — homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer."

Texas Sheriffs, take notice and cease participation in this program.

H/T: Sentencing Law & Policy

FBI director disingenuous or ignorant to criticize smartphone encryption

FBI chief James Comey criticized Apple and Google this week for new encryption added to their latest smartphone product offerings, declaring “he could not understand why companies would 'market something expressly to allow people to place themselves beyond the law.'”

That statement is either a) utterly disingenuous or b) so ignorant and wrong-headed that it calls into question the man's competence to perform his job.

Apple and Google aren't trying to thwart cops. Cops are exploiting security flaws that leave consumers open to identity theft, stalking and other third-party access to their data. And Director Comey would prefer to put consumers' data and finances at risk than make his agents work a little harder to prove their cases.

Bruce Schneier summed up the conundrum thusly in a recent post: "We have one infrastructure. We can't choose a world where the US gets to spy and the Chinese don't. We get to choose a world where everyone can spy, or a world where no one can spy. We can be secure from everyone, or vulnerable to anyone. And I'm tired of us choosing surveillance over security."

Today, smart phones are increasingly used directly for commerce; e.g., you can pay for your coffee at Starbucks with a smartphone app. And many people have data on their phones they need to secure for reasons that have nothing to do with law enforcement - e.g., an attorney with confidential client information, a doctor accessing personal medical data, or a defense contractor worried about cyber-sleuthing by the Chinese.

You'd think the FBI director would applaud these companies for making personal information more secure from hackers and thieves. That he's adopted this stance instead makes me think Mr. Comey cares less about the public's security than preserving his own agency's power, and that we probably need a different FBI director.

Thursday, September 25, 2014

Dem donor dumps big bucks in Bexar DA's race

The Bexar County DA's race may turn out to be as interesting as the ones in Dallas and Houston.

A wealthy trial lawyer from Corpus Christi will give up to $600,000 to Nico LaHood, the Democratic challenger to Susan Reed for Bexar County District Attorney, to purchase TV advertising, the SA Express-News reported. That large a TV buy could make the race competitive, whereas most political observers previously considered Reed a prohibitive front-runner. She defeated LaHood in 2010 by a 54-46 margin.

Reed says the donor, Thomas J. Henry, has ulterior motives for his gift: Payback for her office indicting two attorneys for barratry who had worked for Henry some years ago. LaHood says Henry wants to move to San Antonio and believes the justice system isn't doing enough to combat child abuse. The donor himself has not publicly commented on his role. Who knows the truth? Maybe the guy just doesn't like Susan Reed.

Here's the thing: Even if Reed is 100% correct about why Henry donated so much money, complaints about contributors' influence won't move the needle nearly as much as that much TV advertising will. Your correspondent worked for 14 years as a professional opposition researcher and, though candidates love to complain about their opponent's major contributors, the public just doesn't care. It's not an effective attack. If I were managing Susan Reed's campaign, I'd have her shut in a room 12 hours per day dialing for dollars. If she can't afford to respond to that sort of TV barrage, one wouldn't be shocked to see an upset.

Well water contaminated with arsenic at TDCJ's Wallace Pack unit

The Texas Department of Criminal Justice is seeking a contract to purchase water from the city of Navasota because of "slightly higher than normal levels of arsenic in the Wallace Pack Unit's water," according to the Navasota County Examiner (Sept. 24). But the city turned them down because the agency expected them to pay up front costs to extend a water line outside the city limits to the 1,800 prisoner facility.

How high is "slightly higher than normal"? TDCJ operates two wells at the Wallace Pack unit dubbed #3 and #4 which pump water out of the Jasper aquifer, one of three significant Gulf Coast aquifers. According to this 2009 report (pdf), "The most wide-spread contaminant in produced Gulf Coast groundwater is arsenic, which commonly exceeds the maximum contaminant level (MCL) concentration of 10 μg/L." However, Well 3 "does not have any horizons that are compliant with the arsenic MCL concentration. The well-head sample had 43 μg/L arsenic and concentrations from different depths within the screen ranged from 40 to 43 μg/L," so more than four times the MCL.

Well #4 had lower levels and "is a candidate for possible well modification" so that they only take water from the shallower depths where arsenic levels are less. Apparently, instead of going that route, TDCJ hoped to simply purchase water from another source. Now, it's on to Plan B, whatever that is.

In the meantime, arsenic contamination rates four times the allowable level sounds to me like a bit more serious a problem than "slightly higher than normal," as the Navasota paper described it. 

It's possible that high arsenic levels in the long term could drive up TDCJ health care costs. According to the Natural Resources Defense Council, the National Academy of Sciences found that "arsenic in drinking water causes bladder, lung and skin cancer, and may cause kidney and liver cancer. The study also found that arsenic harms the central and peripheral nervous systems, as well as heart and blood vessels, and causes serious skin problems."

The Wallace Pack unit is in an area southwest of Huntsville with lots of other prison units relatively nearby. I wonder how many others get their drinking water from arsenic-contaminated wells and face similar dilemmas? If readers are aware of other units facing these issues, please let me know in the comments.

See prior, related Grits coverage:

Wednesday, September 24, 2014

Feds force cops to mislead re: fake cell phone towers

The Washington Post published a remarkable and disturbing story (Sept. 23) revealing that not just the Harris Corporation but the FBI required local police using IMSI catchers (or "stingrays") to monitor cell phone traffic to sign non-disclosure agreements (NDAs) about their use. The article opened:
The FBI requires state and local police to keep quiet about the capabilities of a controversial type of surveillance gear that allows law enforcement to eavesdrop on cellphone calls and track individual people based on the signals emitted by their mobile devices, according to a bureau document released recently under a Freedom of Information Act request.

The December 2012 document is a heavily redacted letter between the FBI and police in Tacoma, Wash., as the local department sought to acquire an IMSI catcher, sometimes described as a “fake cellphone tower” because it tricks individual phones into routing their calls and other data through the surveillance equipment. The Tacoma police were buying gear produced by Harris Corp., a Florida-based company that makes the StingRay and other IMSI catchers used by law enforcement agencies across the country.

The FBI letter, which was not classified but was designated as "law enforcement sensitive," told the Tacoma police chief that the Federal Communications Commission authorizes the sale of such surveillance equipment to state and local police departments on the condition that they first sign an FBI “non-disclosure agreement.”
The details of the agreement are redacted from the letter as released; the blacked-out portions stretch across the bulk of a six-page document, which was first published on Monday by MuckRock, a news site that helps journalists, researchers and others submit Freedom of Information Act requests and publishes the results.
It had earlier been reported that the manufacturer of the device, the Harris Corporation, required its customers to sign nondisclosure agreements. But now we discover the feds have one, too - one that's apparently required by the FCC according to the letter Muckrock uncovered, though apparently not in its public rules. The Associated Press had written earlier (June 12) about the feds' attempts to conceal information about stingray use by local police, including a detail that foreshadowed this recent news:
Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies.

A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.
To judge from that account, the NDA requirement stems from an "authorization agreement" with the FCC rather than a formal public rule. (A report from the Daily Caller alleged that the Harris Corporation misled the FCC, claiming the tech would only be used in "emergency situations" as opposed to routine investigations.) But the document discovered by Muckrock is the first we've learned of NDAs between the police and the FBI. It seemed grotesque when it was thought the Harris Corp. was requiring the NDAs. Now we know that the Department of Justice is not just complicit in that deceit but a formal party to the contract. And the FCC, instead of requiring phone companies to fix security vulnerabilities, are licensing private companies to exploit them for profit.

Indeed, it appears federal agencies actively encouraged local law enforcement to lie when they find evidence using the technology, claiming the information came from an informant. Again from the Post:
E-mails collected through a separate Freedom of Information Act request, by the ACLU, showed in June that the U.S. Marshals Service had asked police in Florida to not reveal that they had used IMSI catchers in determining the locations of criminal suspects. Instead, the police were instructed to say that they had learned the whereabouts of suspects using “a confidential source.”
Has the US Marshals Service never heard of Brady v. Maryland?

I wonder, given passage of the Michael Morton Act, with its pro-active requirement to disclose inculpatory as well as exculpatory evidence, whether Texas police are following the feds' advice and lying in official documents when they use these devices?  One would hope not, but then one would also hope the cops would have better sense than to sign a non-disclosure agreement that contradicts with state open records law. (We know the Fort Worth and Houston PDs own IMSI catchers, and probably DPS: Likely other agencies in Texas own them, too.)

Either way, it's no wonder there hasn't been a wider public outcry about the use of such spy tech without warrants nor public disclosure: The government has gone to tremendous lengths to conceal these activities.

Monday, September 22, 2014

Attorney: Warrants not required in TX for cell-phone location data

Dallas defense attorney Michael Lowe had a probative, recent blog post on a topic much-discussed in this venue titled, "Texas police can get your phone records from phone company without a warrant: Ford v. State" (Sept. 3). A particularly notable point mentioned that, before Ford v. State:
many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get ... location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.

Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf
Perhaps the misunderstanding Mr. Lowe describes explains the bizarre confusion demonstrated at the recent Texas Senate State Affairs Committee regarding how to interpret Art. 18.21 of the Code of Criminal Procedure. If Lowe is right that many in law enforcement believed before Ford that a warrant was required, that might explain Houston PDs position. But prosecutors from Harris and Bexar counties must have known about Ford and a similar recent case out of the 14th Court of Appeals (Barfield v. State). And the portions of the statute courts are interpreting did not change with the new language from last session on cloud-based content.

Grits will readily grant the statute on its face is unclear - its plain language offers police a range of options for getting this information, from an administrative subpoena to a full-blown warrant. (In Barfield, police used a subpoena to access location data; in Ford, police obtained a court order using a lesser standard than a probable cause warrant.) But as Mr. Lowe pointed out, case law leaves no ambiguity: At the moment, unless the Legislature changes the law in 2015, no warrant is required in Texas for the government to access cell-phone location data.

MORE: See additional coverage from the Houston Press of last week's State Affairs hearing and law enforcement's strange stance on whether warrants are required for location data.
many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf

Sunday, September 21, 2014

Tim Cole statue unveiled in Lubbock, and other stories

Here are a few items from the last week that may interest Grits readers but which lost out in the competition for time with my paid work:

Tim Cole memorialized by VIPs at statue unveiling
Lubbock this week unveiled a 13-foot tall statue of Timothy Cole, who was falsely convicted of rape in that county and died in prison before his innocence could be proven. Lots of VIPs there, including Gov. Perry and both the Democratic and Republican nominees to succeed him. See CNN's coverage, AP, and the Lubbock Avalanche-Journal. Perhaps the best way politicians could honor Timothy Cole next session would be to pass the final, unfinished recommendation from the Timothy Cole Advisory Panel: Requiring police to record custodial interrogations for serious offenses.

Texas Association of Business goes 'Smart on Crime'
A left-right "Smart on Crime" coalition formally announced this week including the Texas Public Policy Foundation, my part-time employers at the Texas Criminal Justice Coalition, the Texas Association of Business, and Goodwill Industries. The big news here really is the Texas Association of Business stepping up to the plate more seriously on the subject. Their interests are mainly in continuing adequate supply in the labor market, but at this moment in history that aligns their interests with less-government reformers on the left and right who think limited state resources should be spent on more productive endeavors than incarceration.

Abuses reveal Houston cops' mercenary view of ticket writing
Prosecutors in Houston will dismiss hundreds of Class C charges, reported the Houston Chronicle (Sept. 18), because four police officers lied on the tickets, claiming their colleagues were present at the stop so they could cheat on their overtime records. The four officers were recently "relieved of duty" and are "being investigated for criminal conduct." One frequently hear politicians claim the purpose of ticket writing is to enforce the law, not generate revenue.  But for these cops it was about generating revenue: overtime, for themselves.

Harris DA candidates: End key-man system of grand jury selection
Both R and D District Attorney candidates in Harris County believe the key man system of selecting grand juries should be eliminated, reported HouChron columnist Lisa Falkenberg (Sept. 18). So do I. Problem is, judges make those appointments and nobody can tell them what to do but the Legislature. So if you want to change how grand juries are picked, the candidates might be running for the wrong office. I'm old fashioned that way, but I'd prefer the candidates debate stuff that's actually part of the DA's job.

The Driver Responsibility surcharge is still a catastrophe
The Texas Observer's Forrest Wilder has a column decrying Texas' Driver Responsibility surcharge; nothing regular Grits readers haven't heard before but he outlines the problem well and expresses the appropriate level of outrage at one of the most dysfunctional programs in all of state government.

Who is operating fake cell phone towers in Texas, US?
Popular Science wondered, "Who is running the phony cell-phone towers around the US?" (Sept. 15). Like me, they think it's probably cops and spooks. See prior Grits coverage.

Making slime
Off topic, but this was a lot of fun to do with the granddaughter this morning. A big hit. Eight year olds love to make slime.

Friday, September 19, 2014

Grits' recommendations for improving legislative websites

I mentioned that your correspondent testified the other day to the Texas Senate State Affairs Committee on electronic privacy issues. At the same hearing,  the committee took testimony from staff only on another interim charge, "Study the online legislative resources available to the public from Texas Senate Committee websites and compare resources to those provided by other state legislative committees in Texas and other states. Determine how Texas Senate websites can be improved to provide a more interactive and transparent government."

Texas' legislative websites are better than most. But as the committee discussed the topic, a few recommendations came to mind that weren't mentioned in the invited testimony. Here are Grits' two cents, as somebody who uses legislative websites quite a lot:

Place the contents of the committees' backup notebooks online. Before every committee hearing, members are typically given a paper packet of material by committee staff that includes written testimony, background information, potential amendment language, and other materials related to the bills they're hearing. But audience members or people viewing online can't see what they're looking at. In nearly all cases, staff receive this information electronically and could post it online or easily scan it into a pdf form. Invariably these are open records that could be obtained with a request, but there's value in being systematically, preemptively transparent on every bill. Doing so would give people a lot more information about public policy debates and more confidence in their representatives' decisions. 

Make meeting minutes (slightly) more detailed, listing not just bills but speakers along with the time each started so it's easier to find their testimony on video. Meetings can often last for hours during session, covering many bills, and it'd be incredibly useful to have the meetings better indexed so people who couldn't attend can easily find the parts they're interested in.

Do not delete old data, video, etc., just because you add new content. Some agencies do this, removing old information when new reports come in or arbitrarily removing old information from their sites beyond a certain date. Storage is cheap and an historical record is not just valuable for government but imperative.

Thursday, September 18, 2014

Prosecutor's jeremiad against open-file law met with uncomfortable silence

Several days ago on the Texas District and County Attorneys Association user forum, prosecutor Terry Breen from Goliad suggested that, although "The TDCAA has a long standing policy of being neutral on pending legislation. This needs to change."

Why? "During the last legislative session," Breen alleged, "the result of this passivity was the passage of the Michael Morton Act, which expanded the defendant's right to discovery from exculpatory and mitigating evidence--'Brady material'--to include effectively any relevant evidence, including incriminating evidence that the state might wish to not even use at trial." (This, btw, is revisionist history: TDCAA was intimately involved in negotiating the language of the Michael Morton Act; it was their decision to drop the demand for reciprocal discovery that got the deal done.)

Mr. Breen believes that, "The Association should come out publicly for repeal of this ghastly and costly mistake, and then campaign vigorously to that end. Since the act is a costly unfunded mandate on the counties, county judges should be recruited to press for its repeal as well."

His jeremiad, though, has thus far been met with an uncomfortable silence on the normally active user forum. If there's an uprising on the horizon, it's not showing up in that venue. Long-time readers may recall that Mr. Breen made similar complaints when the bill first passed and not all of his colleagues agreed with him. Grits admits the law may not be perfect but has argued that, since it only took effect in January with seemingly no major hitches - beyond a few DAs grumbling about unfunded mandates - the Legislature should leave it alone for a session to give counties around the state time to implement it, judges time to rule on it, appellate courts a chance to consider it, etc., and then evaluate how it has played out. They'll have a lot more information to work with if the Lege evaluates and possibly tweaks the Michael Morton Act in 2017, perhaps making it the focus of some committee's interim charge.

But Mr. Breen doesn't want to tweak the law, he wants to repeal it, going back to what I suppose in his mind's eye were the good old days when he got to decide what defense attorneys did and didn't see in his case file.

Whatever one's view of the Michael Morton Act, and Grits is a strong supporter, Breen is deeply misguided to encourage TDCAA to actively campaign for or against legislation. Too many prosecutors disagree on these and various other questions for the association to always speak with one voice. It would put their full-time staff in an impossible position.

Besides, it's not true TDCAA takes no positions on legislation. They register as officially neutral but routinely speak for or against bills all the time in such an obvious fashion that it's a bit of a running joke in the committees before which they routinely testify. They also facilitate elected DAs and their reps showing up at the capitol to testify and they definitely take positions. This feigned neutrality has been quite an effective tactic for TDCAA over the years and if they began taking pro/con positions bill-to-bill, as Breen asks, it would reduce their effectiveness at the capitol and needlessly create divisions among their base.

If I were their political consultant, I'd discourage TDCAA from taking Breen's advice. OTOH, there's a darker side of me that considers, as a supporter of reforms like the Michael Morton Act, that criminal-justice reformers can only benefit if the prosecutors association were to adopt less effective tactics or even implode through internal dissent. But it appears the group's leadership is probably smarter than that. Don't take the bait, Rob and Shannon. Y'all know better.

CCA: Texas' improper photography statute unconstitutional, Hannah Overton salt poisoning conviction overturned

Yesterday, the Texas Court of Criminal Appeals threw out Hannah Overton's capital murder conviction based on ineffective assistance of counsel and ordered a new trial. See coverage from Texas Monthly and the San Antonio Express-News.

Also on yesterday's hand-down list, the court invalidated Texas' improper photography statute as unconstitutional on First Amendment grounds. See Chuck Lindell's coverage at the Austin Statesman. Last year the court struck down Texas' online solicitation of a minor statute on First Amendment grounds as well, readers may recall, and Houston attorney Mark Bennett thinks there's more to come.

Wednesday, September 17, 2014

Cops, prosecutors, raise white flag, vow to fight on warrants for cell-phone location data

I only saw two news outlets covering electronic privacy debates at the Texas Senate State Affairs Committee meeting yesterday:
The meeting was led by new Chairman Craig Estes who last session sponsored legislation to require a warrant for cell phone location data. See my own written testimony to the committee on behalf of the Texas Electronic Privacy Coalition. The key TXEPC recommendations, fleshed out in greater detail in the full written testimony, included themes familiar to Grits readers.:
  • Require law enforcement to obtain a search warrant to obtain historic cell-phone location data.
  • Require a warrant to install GPS tracking devices on vehicles.
  • Centralize use of 'stingrays,' aka, IMSI catchers at DPS the way the state does wiretaps and require a warrant for their use.
  • Limit data retention on innocent drivers for automatic license plate readers, limit access to the databases to trained, authorized personnel, and restrict sale of data.
  • Evaluate the Department of Public Safety's unilateral decision to take all ten fingerprints when drivers obtain or renew their licenses based on potential privacy violations involving personal electronic devices using fingerprints in lieu of passcodes.
A big highlight for me was expert testimony by Chris Soghoian, a tech expert now working for national ACLU whose dissertation (pdf) first broke open this issue and spawned my own interest in these location-data issues. Thanks, Chris, for coming down!

The hearing took a strange turn, as prosecutors and a detective from the Houston Police Department insisted that changes to state law last session meant law enforcement already had to get a warrant to access cell phone location data. I'm not a lawyer, but that seems downright bizarre since the bill to require a warrant for location data failed; only content, not "metadata" (as it has come to be called post-Edward Snowden), was protected in the language that passed in HB 2268.

The prosecutors' new stance is especially odd because two different Texas appellate courts ruled in recent months affirming no warrant is currently required in Texas to obtain historical cell-phone location data. The US Fifth Circuit Court of Appeals ruled the same way, creating a federal circuit split. (See a related, earlier Grits discussion.) Indeed, the portion of Sec. 5 in Art. 18.21 of the Code of Criminal Procedure that the Fourth Texas Court of Appeals decision in Ford v. State relied upon was not changed in the amendment to HB 2268 requiring warrants for content. I just don't understand how that claim can be justified.

A case summary of Ford on the prosecutors association website even recommended their members rely on the case for precedent in the future ("Because there is precious little caselaw that construes Article 18.21, this decision could turn out to be helpful to others on that basis as well"). And in Barfield v. State, police obtained cell-phone location with an administrative subpoena and Texas' 14th Court of Appeals in Houston upheld it being admitted into evidence. (The Department of Insurance testified that it, too gets cell-phone location data with only a subpoena.)

There appear to be no court cases supporting this novel view that Texas law already requires a warrant to access cell-phone location data. Its proponents could not even provide examples of local district judges suppressing location data, nor of any jurist denying police access to this information. All they offered were hypotheticals.

But no matter how often they kept repeating that the law requires a warrant now, your correspondent simply sees no evidence for the claim. Again, I'm not a lawyer. But attorneys for service providers like Data Foundry and Golden Frog also insisted that warrants are not required in Texas presently for law enforcement to access location data. And that was certainly the universal, contemporary understanding at the time the 83rd session ended. Just a weird debate to have.

The Observer piece by Eric Nicholson summed up the odd tenor of the event thusly: "The debate over whether warrants are currently required is a bit of a head spinner. (Cops are in the paradoxical position of arguing both that warrants are necessary to obtain cell-phone metadata and that they will fight efforts during the 2015 legislative session to require warrants for cell-phone metadata.)" To be sure, I hope they're right and I'm wrong. I want a warrant requirement for these records in Texas (and nationally, though your lowly correspondent can't do anything about that). But until the judiciary agrees a warrant is required, it's hard to buy what police and prosecutors were selling at yesterday's State Affairs hearing.

Go here if you'd like to watch the whole thing online.

MORE: I was interviewed this afternoon along with Rep. Bryan Hughes on the Texas Public Radio show The Source about yesterday's hearing and location tracking issues generally. Go here to listen to the broadcast.

Senate committee told to better regulate sale of criminal records

Sarah Pahl, a policy attorney at the Texas Criminal Justice Coalition, testified yesterday to the Texas Senate State Affairs Committee on the subject of "the widespread storage and sale of criminal records information." See her written testimony (pdf). Among her findings:

.
  • In Texas, nearly 12 million individuals are included in the state criminal history records.
  • Employers and housing providers often rely on inaccurate or incomplete criminal records. The Texas Department of Public Safety reported in January 2013 that only 81% of Texas adult arrests in 2011 had a reported disposition. In other words, nearly 1 in 5 of all Texas criminal records do not include final dispositions.
  • Various public agencies across Texas jurisdictions participate in selling criminal records to private entities. These include, but may not be limited to:
    • County and District Courts (Clerk’s Office)
    • Texas Department of Public Safety (DPS)
    • Criminal Justice Assistance Division (CJAD), a division of the Texas Department of Criminal Justice 
  • [P]rivate entities that purchase criminal records – whether from county and district courts, TDCJ, or elsewhere – are not routinely notified of updates reflecting orders of nondisclosure, expunction, or even final dispositions. Countless individuals are adversely affected by this practice that encourages the widespread dissemination of outdated and incorrect criminal records.
Sen. Eddie Lucio could hardly believe that 12 million Texans have criminal records in a state of 25 million or so. But her source is a federal Bureau of Justice Statistics report (pdf, see Table 1). In that document, she observed in a footnote, "The number of individual offenders in the state criminal history file was 11,824,200." I understand being surprised, though, that's a vast figure. I recall former state Sen. Elliot Shapleigh being similarly shocked when he learned that more than ten percent of Texans at any given time were wanted by the police. (Not to get sidetracked, but much of that has to do with the wretched Driver (Ir)Responsibility Surcharge.)

In any event, here are Pahl's/TCJC's IMO well-considered recommendations:
  • Restrict the sale of criminal history record information to private entities until a final case disposition is entered
  • Prohibit the bulk sale of criminal history record information and mug shots.
  • Alternatively, allow the Texas Department of Public Safety (DPS) to be the only clearinghouse for the sale of criminal records, which will ensure uniformity of all record sales and compliance with updates to records (e.g., orders of nondisclosure and expunction).
Further, Pahl suggested the state "Reform the qualifications and procedures related to orders of nondisclosure, which limit access to (vs. completely expunge) criminal records." In particular, they should:
  • Expand the eligibility criteria for nonviolent offenses and reduce waiting times before being permitted to petition for orders of nondisclosure.
  • Reform the e-filling system to allow for a streamlined web-based petition process that allows individuals to petition without an attorney.
  • Prohibit the forfeiture of the right to nondisclosure in plea agreements.
  • Prohibit third parties from asking individuals to request records that are subject to an order of nondisclosure.
On expunction, Pahl suggested the Legislature should:
  • Expand eligibility criteria required to expunge criminal records.
  • Provide automatic expunctions of arrest records for cases that do not result in a conviction.
  • Allow judges to automatically expunge records for those who successfully complete specialty court programs.
  • Require filing attorneys to be served with notice by anyone who files an answer to a petition for expunction.
  • Require the Texas Department of Public Safety (DPS) to certify compliance with orders of expunction.
Go here to see her full testimony, these are just top-line excerpts. 

In the interest of full disclosure, your correspondent is currently performing consulting work for TCJC on a separate matter. I suppose Grits should also mention that I testified at the same Senate State Affairs Committee meeting on behalf of the Texas Electronic Privacy Coalition regarding the committee's interim charges on requiring warrants for electronic metadata, which was a bit of a surreal experience. More later on how that went.

Tuesday, September 16, 2014

Corrections Committee Chair Tan Parker questions jail time for low-level pot possession

Here's an incredibly positive sign for drug sentencing reform from Texas House Corrections Committee Chairman Tan Parker, as reported by the Dallas Morning News' Rodger Jones on their Opinion Blog (Sept. 16):
in an interview with the editorial board yesterday (along with his Democratic opponent, Daniel Moran, a UNT student), Parker said he would support legislation eliminating jail time for possession of small amounts of marijuana. His position reminded me of Gov. Rick Perry’s statement this year that, “You don’t want to ruin a kid’s life for having a joint.”

Parker’s position is interesting, coming from the chairman of the House Corrections Committee who’s regarded as pretty conservative. If Parker occupies this space on drug policy, it could indicate movement by more Republicans than I would have expected for next session.
Check out the rest of Jones' rather lengthy, noteworthy discussion with Chairman Parker. Remarkable.

Ugly allegations of abuse, inmate hazing at Bartlett State Jail

Holy God! I hardly know what to make of this! From the San Antonio Express-News ("Lawsuit: Texas prison okays odd sex assault," Sept. 26):
A lawsuit filed against the Corrections Corporation of America in Austin alleges the private prison company violated a former prisoner's constitutional rights by allowing a hazing tradition called "ass on the glass" that led to a sexual assault.

The suit, filed in federal district court, claims a Bartlett State Jail guard knowingly allowed the man, referred to as John Doe in the court documents, and more than 50 other prisoners to be subjected to the hazing tradition that involves forcibly stripping an individual, turning him upside down and slamming his buttocks against the glass of a guard's station.

During a two-hour incident last October in which all 55 prisoners in the cell block were subjected to the hazing, a prisoner allegedly "inserted his finger into Mr. Doe's anus, and another grabbed his testicles, sexually assaulting him in violation of the Texas Penal Code," according to the documents.

The defendant claims that the one officer on duty, responsible for four cell blocks with 55 prisoners in each, "watched dozens of men get slammed up against the glass wall" and "did nothing." ...
 The Bartlett State Jail, a men's prison, is located in Williamson County and has 140 security employees and a capacity of 1,049 inmates, according to the TCDJ.
The Texas Civil Rights Project is handling the case. TCRP attorney Scott Medlock, formerly an attorney with the Texas Civil Rights Project, told the Express-News that "the man was sentenced to 180 days in state jail for possession of less than a gram of a controlled substance. He said the defendant 'made a mistake, was punished for the mistake, but did not deserve to be sexually assaulted.'"

Of course, for now these are only allegations, but they're certainly disturbing ones. If they're true, it makes you wonder about a) the effectiveness of TDCJ contract monitoring with private prisons and b) whether Corrections Corporation of America's recently announced commitment to preventing recidivism and reentry programs could possibly jibe with the organization's historic institutional culture.

In the meantime, add the Bartlett State Jail to the list of facilities the Legislature might consider shuttering if they decide to close more prisons. If its institutional culture was tolerating this, it's hard to imagine staff there will suddenly shift toward a rehabilitation mindset. Better to just end the contract and cut bait.

MORE: From Texas Prison Bidness.

Monday, September 15, 2014

Deputy seeks sex offender dick pics

A Sheriff's deputy in Wise County has been arrested in a bizarre incident. Sgt. Chad Hightower told sex offenders the state now required him to photograph them nude. He even told one fellow he must achieve an erection for the photo shoot, which took place in the police impound yard. Unreal.

Apparently similar photos were found on the deputy's camera involving other sex offenders, which to me indicates how easily this powerless population may be manipulated and abused. They've been stripped of so many rights, subjected to so many degradations, that it's near-impossible for a layperson to judge the legitimacy of such demands and requires tremendous courage to confront abuses.

Why Austin property taxes are so high

Austin pays our cops too much, has too many of them, and most of our city council is in the pocket of the police union. So thanks to Bill Spelman and Laura Morrison for at least trying to inject reason (and math) into the city's dysfunctional budget discussions. Reported the Austin Chronicle:
"public safety" (police, fire, EMS) will consume 70% of next year's $854 million GF budget (even excluding municipal courts), with APD alone representing 42%. Parks and libraries (generally cut first in lean times) together consume 13%; and Health and Human Services (contributing at least partly to "public safety") is another 6%. That's quite nearly everything – and it also bears emphasis that the public safety portion continues to grow, a trend that is literally unsustainable.

Unless, of course, we're prepared eventually to spend our money on police, fire, and emergency services, and nothing else. Failing that, Spelman's hoping that come 2015, at least some of the incoming Council members will realize that while public safety might be a sacred public obligation, public safety spending is not necessarily a sacred cow.

Texas' mandatory blood draw statute on DWI under fire

Texas' warrantless blood draw statute has been challenged and in some cases declared unconstitutional by intermediate state appellate judges in the wake of the Supreme Court's 2013 McNeely decision.  Tyler's 12th Court of Appeals became the latest to contend "the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment."

Another pro-Fourth Amendment opinion from a Texas appellate court on the topic came in July from the Fourth Court of Appeals in San Antonio, ruling that "warrantless searches are presumed unreasonable and must be justified on a case by case basis."

The SA Express News editorialized recently that the Court of Criminal Appeals should pick up a case to clarify the issue, and at some point they surely will. But if they go against the lower courts and uphold the current statute, we might see the issue challenged again at SCOTUS.

Crime reduction rates show little link to incarceration

The justification for mass incarceration has always been public safety. But this new analysis from the Pew Charitable Trust shows that "higher threats of incarceration don't actually deter criminal activity." Indeed, states which reduced incarceration rates saw similar or even greater reductions in crime from 1994 to 2012 than those that expanded their number of prisoners. For example, New York State reduced its incarceration rate the most over this period (by 24 percent) but also saw the largest reduction in crime. Meanwhile the state with the greatest rise in incarceration rate (percentage-wise) was West Virginia, which expanded its prison population by 195 percent while it was the only US state to see crime INCREASE over this period.

RELATED: On my "to read" list is a new, seemingly exhaustive analysis by the National Academy of Sciences (published in May) titled "The Growth of Incarceration in the United States: Causes and Consequences" (pdf). It's a fat tome but delves deeply into the substance of why crime reduction and mass incarceration seem at best tenuously linked and explores other theories and factors that may explain the counter-intuitive data.

Sunday, September 14, 2014

Deaths in custody near-daily events in Texas

According to this list on the Attorney General's website, there have been 3,680 peole who've died in custody of state and local law enforcement in Texas since 2005, which seems like a remarkable number - roughly one per day. Nearly half the deaths happened in TDCJ units. Here's an excel file with a list of the deceased.

Lyons' wrongful termination suit vs. TDCJ reinstated

Former TDCJ flak Michelle Lyons saw her wrongful termination lawsuit against the agency reinstated last week after the 5th Circuit Court of Appeals overturned a summary judgment ruling by the trial judge. Readers may recall Lyons was accused of lying on her time sheets. But, reported the Huntsville Item (Sept. 10):
The circuit court said the lower court and TDCJ did not mention evidence that could have led a jury to favor on Lyons’ side. That evidence was a statement by Lyons’ then-supervisor Larry Fitzgerald, who retired in 2003.

“I explained to Ms. Lyons that since she was an exempt employee she was not eligible for overtime,” Fitzgerald said in part of his affidavit. TDCJ said Lyons’ inaccurate timesheets led to her demotion in 2012. “Therefore, it was not necessary for her to track her hours to the minute on a day-to-day basis. I also explained to her since she was an exempt employee it was not necessary for her to work a set shift.”
Fitzgerald explained that this was because of the erratic hours public information officers worked. Rather than minute-by-minute timekeeping, Fitzgerald told Lyons she was responsible for working a minimum of 40 hours per week and to mark her records for “eight hours in the office per day.”
The circuit court said that a “reasonable jury,” along with evidence showing her co-worker also failed to follow the timesheet policy, could conclude that public information officers were an exception to the rule. The court said that should’ve been debated by a jury.
If proven true, the court also said that could be seen by a jury as the “selective application of a facially neutral policy.” In other words, if the policy was equally applicable to all employees as TDCJ claimed, why were public information officers treated differently and why was Lyons treated differently than her co-workers?
But the court also said there is a factual question as to whether the timesheet violations were “the actual reason for her demotion or a pretext, TDCJ was not entitled to summary judgment.”
On the final question, there's very little doubt Lyons' firing over time sheets was mere pretext. She was public information officer at an agency which over the years has become more insular and opaque and, at root, would prefer the public had as little information about it as possible. As far as I can tell, she was fired for doing her job. Now perhaps a jury will get to decide. Or perhaps TDCJ will settle to prevent Ms. Lyons from taking the stand and revealing where all the (metaphorical) bodies are buried.

US Attorney in DC to create conviction integrity unit

It's always nice to see good ideas spreading. The US Attorney in Washington, D.C. is creating a conviction integrity unit modeled on Dallas DA Craig Watkins successes in Dallas and a similar unit in New York. Reported MyFoxDC (Sept. 11):
U.S. Attorney Ron Machen has decided to take a bold step in creating a unit that will investigate cases his prosecutors have already taken to court. Cases in which troubling questions may emerge post-conviction like the discovery of DNA, a bad witness or even a false confession.

Over the last four years, the U.S. Attorney's Office has investigated more than a hundred cases in which hair and fiber analysis played a role in convictions.

Five men had their cases thrown out when the evidence used against them turned out to be false. The latest being Kevin Martin, who served time for a murder he did not commit.

"Anytime that happens, it's a prosecutor's worst nightmare,” said Machen in an interview Thursday. “Our job, our mission is to punish the guilty, but protect the innocent, and if innocent individuals have been wrongly convicted, it's our job to do the right thing.”

So the District's top prosecutor has designed a unit that will be staffed with a veteran assistant U.S. attorney, who along with defense attorneys, will look at cases that have developed troubling questions after defendants have been found guilty.

Saturday, September 13, 2014

Prosecutors withheld evidence in shaky Dallas murder convictions

Two Dallas men convicted of the 1999 murder of a Dallas pastor are seeking to be declared innocent, or at least receive a new trial, "on the basis of new DNA evidence and a trial they say was tainted by false evidence knowingly presented by prosecutors." Reported the Dallas News, "the two men were convicted on testimony from jailhouse informants and an unrecorded confession."

Whether or not the DNA proves them innocent, it's pretty clear prosecutors withheld exculpatory evidence. When the DA gave attorneys with the Innocence Project of Texas and the national Innocence Project their case file:
attorneys found letters from the inmates who had testified that they’d heard the two men admitting the murder.

During their court testimony, the informants said they had not been “promised, sought or expected any personal benefit for their testimony.”

But letters from those inmates found in the file demanded benefits, such as reduced sentences for pending charges, that they “believed they had been promised from the state in direct exchange for testifying.”

“The prosecution not only failed to turn over this material,” the brief said, but concealed it while “insisting” to jurors “that no such discussions with these informants had ever occurred.”

The two jail informants have now told the defense attorneys their testimony was false, the filing says.
The Michael Morton Act passed in 2013 required prosecutors to make such evidence available to the defense before trial, but clearly to deal with older cases there should probably be some sort of post-conviction discovery available in habeas proceedings. If Dallas DA Craig Watkins' office hadn't voluntarily opened up its files in this case, the underlying prosecutorial misconduct would never have been discovered.

It's also worth mentioning that the original case relied heavily on jailhouse informants, but if the case were retried today that testimony would have to be corroborated. Texas law didn't include such a requirement until 2009 when state Sen. Juan "Chuy" Hinojosa passed a corroboration mandate for jailhouse snitch testimony.

Friday, September 12, 2014

In which states are men most likely to murder women? (TX ranked 16th)

In the wake of a national frenzy over the video of an NFL star punching his wife, we learn that Texas ranked 16th in the number of females murdered by men in single victim/single offender homicides, according to a new report by the Violence Policy Center titled, "When Men Murder Women" (pdf, see Appendix 1, pp 9-10). Alaska topped the chart at 2.57 such murders per 100,000 women, followed by South Carolina (2.06), Oklahoma (2.03), Louisiana (1.92), and Mississippi (1.89). The lowest rate was in New Hampshire at .30 per 100,000 women.

Based just on the raw numbers in this report, Texas had the second highest total number of such killings after California, which makes sense since they're the two most populous states. In 2012, California had 18.4% more women murdered by a single male offender than Texas - 212 compared to 179. But because the Golden State's population is so much greater, California's per-capita rate is lower - 1.11 per 100,000 women in 2012 compared to 1.37 in Texas (i.e., Texas' per-capita rate is 23% higher than California's, which was tied for 27th).

Sixteenth isn't great - New Jersey is ranked 33rd, for example, and the per-capita rate there is only .90 per 100K. But this is one list where I'm relieved to find my home state isn't leading the pack.

Via the Texas Legislative Reference Library.

Thursday, September 11, 2014

Debunking weird cop claim that warrants already required for cell-phone location data

On Monday, Eric Nicholson of the Dallas Observer followed up this Grits post with his own reportage, including quotes from your correspondent, regarding the (to me, non)debate over whether warrants are required under current Texas law for police to access historical cell-phone location data.

For some reason, law enforcement interests at the capitol are telling legislative staff that warrants are already required because of the Stickland/Dutton amendment (based on a bill first suggested by the Texas Electronic Privacy Coalition) which required a warrant for cloud-based email and other content. But the legislation didn't reach location data nor other "metadata," as the term has been popularized post-Edward Snowden.

Law enforcement interests took a completely different position when the two bills were in play in 2013. Back then, I can say from first-hand experience, the cops were willing to acquiesce on warrants for email and cloud-based content. But they fought tooth and nail against HB 1608. They ultimately convinced the authors of the bill to which Hughes had amended it - state Sen. John Carona, who lost his primary to Senator-elect Don Huffines, and Rep. John Frullo, who is returning - to strip Hughes' language out of the final version that passed.

So the Legislature did not change the law, which presently allows agencies to get location and other metadata under lesser federal standards or even a subpoena, as is done by the Department of Insurance according to the agency's testimony to a Texas House committee last year.

As the Grits and Observer posts point out, the cops' stance also contradicts recent, on-point caselaw. In Ford v. State, a Fourth Court of Appeals (San Antonio) case delivered in August which found there was no warrant requirement because of the Third Party doctrine. See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data, which jibes pretty closely with past appellate rulings. (The 14th Court of Appeals in Houston ruled similarly last year in Barfield v. State.) The courts aren't going to fix this and the appellate judges are telling us the Legislature hasn't done so either, yet. No matter what law enforcement is saying to legislative staff, the Stickland/Dutton amendment simply did not reach cell-phone location data; Ford and Barfield make clear that that would require further legislative action.

In many ways, I'm glad TXEPC, of which I'm a proud member, launched our campaign to require a warrant for cell-phone location data in Texas nearly a year before the Edward Snowden revelations. The 107 joint and co-authors who signed onto the bill in the House weren't reacting to some trendy national scandal about the NSA or the Obama Administration, but because they agreed with the concept independently, on the merits. It's true, if Snowden had come forward two months earlier, both bills would have passed instead of just one, as I told Mr. Nicholson. But if we can pick up the warrant requirement for location data (like a bowling spare) in 2015, the effort won't have been in vain. Next week's Senate State Affairs Committee hearing on electronic privacy should give us a better idea of where we stand in the upper chamber.

To prepare for his post, Eric watched the House committee hearing on Rep. Bryan Hughes' HB 1608 back in 2013 (See Grits coverage here and here, or watch the hearing yourself here beginning at the 3:37:15 mark on the video.) He observed, in retrospect: "Watching the committee hearing, it's almost quaint to watch lawmakers grapple with the notion that the cell phone in their pocket is continually transmitting enough data to give anyone crunching it a time-stamped map of their locations and habits. Snowden wouldn't bring the concept of cell-phone metadata to public consciousness for another three months."

My hope is that the warrants for location data bill gets low bill numbers and an early start in both chambers so that stalling tactics can't kill the popular legislation, as happened in 2013. There are other issues on the State Affairs Committee's interim charge list on electronic privacy that aren't as well developed, but in the case of the Hughes/Estes/Hinojosa legislation on cell-phone location data, it's been vetted through the process and is ready to move, if the leadership will allow it.

Wednesday, September 10, 2014

TDCJ's $6.8 billion budget request slants too much toward prisons

Here's a one-page summary (pdf) of Texas Department of Criminal Justice's  Legislative Appropriations Request (LAR) for FY 2016-17. There's a request for a ten percent employee raise in the exceptional items - which the Lege must specifically approve as extras - but not in the base budget. (Here's the agency's full LAR, which I haven't had time to examine yet.)

The baseline budget for the coming biennium would cost $6.096 billion in general revenue (GR) funds, $6.252 billion total. But there are several items - from pay hikes for staff to prisoner healthcare, With the exceptional items added in, including raises, the GR total would rise to $6.643 billion, and the all-funds total sums up to $6.799 billion. Here' the list of exceptional items, totaling $546.6 million, from the summary:
  • Ten percent pay raise: $235 million
  • Private prison per diems: $7.7 million
  • 250 halfway house beds: 8.8 million
  • 500 DWI treatment slots: $2.9 million
  • Repair and renovation of facilities: $60 million
  • Probation, basic supervision and treatment: $28.1 million
  • Probation, employer portion of health insurance: $11.3 million
  • Offender health care: $174.8 million
  • Reentry initiatives/transitional coordinators: $4 million
  • Mental health initiatives: $6 million
  • Treatment for remaining ISFs: $5.2 million
  • Office of Inspector General: $2.8 million
Notably, many of those exceptional items are really must-haves, particularly offender healthcare and arguably staff raises (TDCJ can't recruit vs. oil field work and many units are chronically understaffed). Heck, I wish they were asking for more re: reentry, mental health and treatment dollars. The agency always short shrifts those aspects of its mission in favor of funding the institutional side, which as you can see would gobble up the overwhelming majority of extra funds under the agency's plan.

But there are other options available to the Lege besides watching TDCJ's budget spiral ever-upward session after session. Just a few, modest updates to the sentencing structure for nonviolent crimes - adjusting property crime levels for inflation and notching low-level drug crimes down by one penalty category - would allow the Legislature to close several more prisons and use the savings to fund staff raises and offender healthcare. TDCJ will never propose that, but it's really what ought to happen.

When you have the chance to make government smaller and cost less, why not take it?