Tuesday, July 28, 2015

A suggestion for 'The Sandra Bland Drivers' Rights Act'

This morning, I received a text from the missus* who suggested that, in 2017, reprised legislation to limit police arresting motorists for Class C misdemeanors should be titled, "The Sandra Bland Drivers' Rights Act." Clever gal. Bud Kennedy at the Fort Worth Star-Telegram had earlier described the law that needs updating, and UT law prof Jennifer Laurin suggested that:
state legislatures can, and should, limit police discretion to arrest for minor violations. 
The Texas Legislature attempted to do that in 2001 and 2003, passing one bill barring arrests for most offenses not punishable with imprisonment, and one to force police to enact rules on when arrests can occur. Then-Gov. Rick Perry vetoed both bills. The Texas Legislature should act again to prohibit arrests for minor violations, and the current governor should lend his support. 
So, too, lawmakers can push for greater police professionalism (through more rigorous training requirements) and for less protective civil service laws. In contrast to the limits of rulemaking through lawsuits, the options are theoretically endless for legislatively driven police oversight. The only limit is political will.
Indeed, there have been lots of interesting columns published about the case recently, including a bunch of good ones from the Dallas News. E.g.:
* Your correspondent is in Lubbock moving the Innocence Project of Texas out of its long-time offices, which explains why blogging has been light. Our landlord, who donated the space for many years, just sold the building and we've been asked to vacate on quite short notice, months ahead of original plans.

Saturday, July 25, 2015

Texas Monthly interviews Grits

After your correspondent became executive director of the Innocence Project of Texas last month, Michael Hall at Texas Monthly asked to interview me about the job, the blog, and where the innocence movement is headed in the future. See the published version here.

Learning from Sandra Bland: First thoughts

Grits readers are so familiar with the masthead that most of you have probably stopped reading it: "You might beat the rap, but you won't beat the ride." The death of Sandra Bland shows that old canard remains among the most serious problems in our Texas justice system. The protections guarding anyone from being pulled out of their car for no reason, taken downtown and booked into jail (for no demonstrated reason), and then quite possibly dying there, have eroded to the vanishing point. Sandra Bland, like most Texans, didn't actually know that and received the harshest possible lesson when she tried to articulate what she thought were her rights.

The Texas House County Affair Committee will hold a hearing next week to study "jail standards, procedures with regards to potentially mentally ill persons in county jails, as well as issues stemming from interactions between the general public and peace officers." That sounds to me like the first state-level public hearing on the policy issues surrounding the Bland case and it's worth considering what policy responses might look like look like beyond placard-sized slogans.

Sandra Bland's death highlights at least three major policy changes needed to keep the public safe from its protectors.
  • The officer should not have had grounds to arrest her in the first place. 
  • Even if arrested, she should have been booked and released, not jailed.
  • Once in jail, she should have been more closely monitored (assuming her death was, in fact, a suicide.)
On the traffic stop: Yes the officer was rude, needlessly aggressive and threatening. But that was probably punishable misconduct (DPS immediately reported his reassignment to desk duty awaiting discipline). Less discussed but more important from a public policy perspective is the issue Bud Kennedy raised in the Fort Worth Star-Telegram: It's bullshit that a cop has the right to arrest somebody over a traffic violation. Kennedy explained the authority under which the trooper believed he had the right to drag Bland out of her car for failure-to-signal-lane change:
By a 5-4 vote in 2001, the Supreme Court upheld the arrest of Gail Atwater, 45, stopped by Lago Vista police driving slowly along the roadside helping children look for a lost stick-on ornament from the Austin Ice Bats hockey team.

Justice David Souter wrote in the majority opinion that any arrest involving a violation is not “unreasonable” search or seizure.

University of Texas Law School professor Michael F. Sturley was another of Atwater’s lawyers.
“Here was a mother and her kids looking for a toy, and she got thrown in jail,” Sturley said.

“Police experts say the last thing you want is to arrest someone over a traffic stop. It’s expensive to jail people, takes officers away from duty and imposes a lot of costs on the system. But police say it’s a tool when they want to throw someone in jail.”

In Texas, police don’t need a good reason. Just a reason.

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article28476181.html#storylink=cpy
Long-time Grits readers may recall that the Legislature passed a law in response to that Supreme Court case disallowing arrests for most Class C misdemeanors, but the bill was among Rick Perry's first round of vetoes in 2001. In 2003, Perry vetoed another bill which would have required law enforcement agencies to have written policies stating when their officers could arrest for Class C misdemeanors, and the Legislature has not seriously addressed the issues since.

With a new governor and momentum from this episode (the trooper was a complete jerk, making the video viral gold), perhaps it's time to revisit the Legislature's 2001 rebuff of the Atwater decision. Your correspondent has long considered that one of Rick Perry's most egregious and harmful vetoes.

On arrival at the jail: Once dragged out of her car and taken down town, she could have been charged, booked and released. Remember, this all started with a traffic violation. Grits for years has harped on egregious, needless levels of pretrial incarceration at Texas' county jails -- currently 60.7% of statewide jail populations are incarcerated pretrial.

Consider that percentage that for a moment in light of Sandra Bland's death. Like Bland, more than half of the people in jail haven't been convicted of anything. Grits has spent considerable blog space over the years promoting alternatives to big, expensive new local debt issues for jail expansion. The simplest: you don't actually have to jail most people pre-trial.

While lots remains unknown about Sandra Bland's death, she would probably be alive today if she had been booked and released on a personal bond with a date to return to court for her hearing.

On detention: the last policy issue bound to get more attention - particularly if the murder allegations fail to stand up - is suicide prevention in jails. The Texas Tribune reported that suicides are by far the most common cause of unnatural deaths in jails and most of those are hangings. (See additional Trib coverage of regulatory and mental health issues arising from the case.)

Last year in Texas there were 615 in-custody deaths; 410 were in TDCJ (excluding 10 executions) and the rest were police shootings or deaths in jails. (Here's the AG's running list.) Suicides are the most common source of jail deaths besides natural causes. As I've written before, while advocates worldwide focus on Texas' death penalty, few advocates or media similarly prioritize confronting this far more common way to die behind bars:
These deaths were never scheduled, thus never delayed, and for the most part no newspaper reporter ever told their stories. But they remain just as dead as the men and women killed in the execution chamber, their families grieve as ardently. Dead is dead, even if humans seem to suffer from a desire to make some deaths matter more than others. It's all the same to the deceased.
Sometimes Texas jails have struggled with this problem, sometimes they've ignored it. But now the issue has moved to the front burner. The Bland case raises the question: What obligations are incurred by a jail when they learn through the intake process that an inmate has an acknowledged history of suicidal thoughts? The Commission on Jail Standards issued Waller County a red card over inadequate monitoring:
The jail was also cited for failure to personally observe an inmate at least once an hour, according to the Commission's executive director, Brandon Wood. The jail was previously cited for violating the 60-minute observation standard in 2012, after an inmate hanged himself with a bed sheet.
So this happened before, they were cited, but they didn't fix the problem. Even so, it's unclear that even checking in once every 60 minutes would have prevented what happened. Should there be requirements for video monitoring for inmates at risk of suicide? That would require more money for equipment and staffing, but nobody ever said it should be cheap and easy to take away someone's liberty.

Those are just a few examples of policy issues arising from the Bland case and I bet the County Affairs hearing next Thursday will identify more.

Sandra Bland's friends and family are raising a ruckus because she was a special person. Unfortunately, the circumstances surrounding her unjust detention and preventable death weren't special at all. One can can learn much from what's unique about this young woman's case, but perhaps even more from what it has in common with dozens or hundreds of others. Viewing the episode analytically can be difficult amidst the natural reactions of anger, shock, and grief, not to mention understandable defensiveness on the part of authorities. But it's necessary and implicitly those broader lessons are why her death matters to every Texan, in addition to the people who knew and loved her.

Implementing the Michael Morton Act

For those interested, the Texas District and County Attorneys Association posted their Brady/Michael Morton Act training materials online, as well as a list of prosecutors in compliance with new legislative training requirements under the law.

See this earlier Grits discussion of emerging issues with the Michael Morton Act, including examples of noncompliance and odd legal interpretations by some prosecutors. That post adumbrates a report published this spring on the topic and your correspondent recently recorded an interview with one of the authors, which I'll wait to post while I'm on vacation next month.

Wednesday, July 22, 2015

Resources on Texas and federal hair microscopy reviews

Today I compiled these resources for a colleague on Texas and federal reviews of flawed forensics in hair microscopy cases and thought there may be other Grits readers who're interested:
There's also a good discussion of the limitations of microscopic hair analysis with useful footnotes in this fat but useful reference book, which sits on a shelf above me but is also available online. And the problems with hair microscopy share themes with other non-scientific comparative forensic disciplines critiqued in Chapter 5 of this 2009 National Academies of Science treatise; here's a link directly to the subset of that discussion on hair analysis.

Sunday, July 19, 2015

How much is too much? Estimating maximum caseloads for Texas lawyers representing criminal defendants

When the Texas Indigent Defense Commission issued its "Guidelines for Indigent Defense Caseloads" in January, your correspondent had little bandwidth to devote to the lengthy, detailed document beyond adumbrating the basics regarding what maximum recommended caseloads would look like. But I'd tacked the report onto my ever expanding summer reading list to examine this important document more closely, and when I did, it didn't disappoint.

The report was written by Dottie Carmichael and her team at Texas A&M's Public Policy Research Institute, combining several distinct bodies of research.

First, it compiled newly available data from counties and attorney self reporting which was mandated to be gathered under HB 1318, passed in the 83rd (2013) Texas legislative session. Nobody's done much analytical work with this dataset yet beyond what's in this report, at least that's been made public, but the attorney-level data now being compiled will only become more robust over time and can't help but influence public policy. If nothing else, counties for the first time can learn how many cases attorneys  in their jurisdiction are taking in other counties. A local attorney who may not appear to have an excessive indigent caseload may be way over the top when one considers cases across counties. Now counties can do so, and so can her clients.

The report also utilized individual attorney time-keeping studies, opinion survey tools, and a Rand-Corporation developed process for determining expert-opinion to estimate how much time attorneys should be spending as opposed to what they're doing now. That normative assessment builds substantially on a framework derived from the state bar's "Performance Guidelines for Non-Capital Criminal Defense Representation." Bottom line: Criminal defense lawyers spend far too little time investigating their cases or communicating with their clients, the study found. And they should be taking more cases to trial, perhaps a lot more, particularly in felony cases. (See the report for their detailed breakdown of the data, I'm only describing topline, summary impressions.)

It was pretty ambitious project, and they took a solid first stab at it.

Grits has a general policy of deferring to folks who are obviously much smarter than me on their issues of expertise. So, to explain the meaning of and context surrounding these guidelines, your correspondent cheerfully yielded the floor to Becky Bernhardt, who this year replaced Andrea Marsh as executive director at the Texas Fair Defense Project. Grits asked her to stop by to visit about the TIDC report and recorded part of the conversation for a podcast. Listen to it here:

Or, mercifully, as your correspondent has a face made for radio and a voice made for print, reader donations make it possible to provide a full transcript of our 18-minute conversation below the jump.

Roundup: The contested, alleged suicide of Sandra Bland in the Waller County Jail

Your preoccupied correspondent had not until this morning read the voluminous press surrounding Sandra Bland's untimely and unlikely suicide in the Waller County Jail last weekend. For those, like me, playing catchup on the story, here's a sampling from the barrage of coverage:

Saturday, July 18, 2015

DNA match statistics overstated, news delayed scheduled execution

Reported AP's Michael Graczyk, "The Texas Department of Public Safety sent a notice June 30 that the FBI-developed population database used by the crime lab in Texas and other states had errors for calculating DNA match statistics in criminal investigations." The Texas Attorney General's Office informed attorneys for Clifton Lamar Williams of the issue on Wednesday and the Court of Criminal Appeals halted his execution scheduled for Thursday night and ordered the trial court to hold a hearing.

The math error overstated at trial: "Williams is black, and prosecutors said the probability of another black person with the same DNA profile found in [the victim's] missing car was one in 40 sextillion. Jurors in 2006 were told the probability was one in 43 sextillion. A sextillion is defined as a 1 followed by 21 zeros."  Of course, there are only 7 billion (nine zeroes) or so people on earth, so that statistic essentially told jurors it's nigh-on impossible it was anyone else.

Whether this issue will prevent rather than delay his execution is another matter. "Challenges to DNA evidence and arguments about Williams' guilt were not included in previous appeals from Williams, whose lawyers had argued unsuccessfully in earlier appeals that his legal help at his trial was deficient and that he was mentally impaired and therefore ineligible for the death penalty," reported Graczyk, and there was plenty of other evidence. "Williams led police to a pond where [the 93-year old victim's] purse that had contained about $40 was found, along with a knife from her kitchen that investigators believe was used to stab her."

Perhaps the racial frame cast upon the testimony explains the astronomical numbers. In previous coverage of the issue I've never seen overestimates range to the sextillions, which sounds like the forensic analyst and the DA in my hometown employed a particularly extreme version of this error at Mr. Williams' trial. Regardless, the DPS notification affects lots of cases besides his, even if delaying Williams' scheduled execution appears to have engendered the first public report of the DPS notice, that I've seen anyway.

The Hays County DA posted a copy of the notice from DPS on their website.

Texting ban proponent: If new laws don't improve safety, at least they make people 'feel weird'

Better late than never, the Dallas Morning News' Tom Benning offered up an assessment of research regarding the public safety benefits, or rather the lack of documentable safety benefits, from municipal ordinances banning texting and cell phone use, titled, "Do cities' texting-while-driving bans reduce crashes? ¯\_(ツ)_/¯" (July 17). In a nutshell:
Texting or talking on the phone while driving is demonstrably dangerous — a fact that’s backed up by reams of research. There’s no denying either that cellphone use while driving can cause accidents — Austin, even with flaws in the data, saw 70 of those wrecks in 2014 alone.

But banning the practice doesn’t necessarily reduce accidents.

A Dallas Morning News analysis of the imperfect crash data in 12 Texas cities with cellphone rules found no consistent reduction in distracted driving wrecks after cities enacted bans. And that follows equally mixed reviews found by scientific studies on statewide bans on texting or hand-held cellphone use while driving in other states.

“It’s not clear the bans in place have had the desired effect,” said Anne McCartt, senior vice president for research at the Insurance Institute for Highway Safety. “There are a lot of issues related to enforcement, data and other things, but that’s the bottom line.”
Regular readers may recall past analyses of traffic accidents in states with texting bans. The story goes on provide this sumamry of the News' research, and others:
To see what impact these ordinances might be having, The News analyzed Texas Department of Transportation crash data for a dozen cities that have passed them. The data focused on wrecks in which cellphone use or distraction was a contributing factor.

But the statistics, which rely mainly on driver accounts from the scene of a crash, raised more questions than they answered.

Several cities saw the crash rate for cellphone-involved wrecks drop after implementing either a texting or a hands-free ordinance. But many of those same cities saw distracted driving crashes, which include the cellphone incidents, actually increase.

Did the ordinance actually reduce cellphone use? Or did it just make drivers even more leery to admit that they had been using their phone? Or did the elimination of one distraction behind the wheel simply lead to others?

Then some cities saw crash rates increase after implementing new rules. Some saw those rates go up and then go down. And some indeed saw an apparent drop in both crash categories.
But there are many variables at play.

In Corpus Christi, for instance, a police spokesman explained that his city’s precipitous drop in those crash rates was likely just the result of the fact that the department no longer fills out crash reports on wrecks that don’t cause at least serious injury.

Despite those challenges, some argue that such volatility adds to the need for a statewide ban on texting behind the wheel. That would reduce confusion drivers might face in knowing which cities have ordinances and which ones don’t.

Proving success, however, would still be a challenge.

Scientific studies on statewide bans have relied on insurance claims, hospital visits or crashes overall — and then tried to control for other factors that could affect the data. But that research ends up similarly mixed, with some showing success and others not.
The story concludes by quoting a supporter of texting bans saying that whether they're measurably improving safety doesn't matter. Instead, it's about changing the "culture."
supporters counter that the statistics are just part of the story.

They argue that the push against talking or texting behind the wheel is really about creating a culture change. And for that to take hold, they say, it means setting expectations state by state — and if need be, city by city.

“At some point in the future, it should feel weird and wrong to pick up a phone in the car,” said Beaman Floyd, director of the Texas Coalition for Affordable Insurance Solutions.
Proponents sell these new criminal laws by insisting they'll save lives, and if the data showed an improvement, they'd surely claim credit. But when traffic safety promises fail to materialize, all of a sudden the goal was really a "culture change" - not to measurably improve safety but to make people "feel weird and wrong to pick up a phone in the car."

Making people "feel weird" is not a usual or appropriate function for criminal law if there's no correlated public safety benefit. If changing culture is the goal, enforcement money would be better spent on an advertising/PR budget.

Thursday, July 16, 2015

Rick Perry on the cost of an effective criminal defense

How much does it cost to effectively defend oneself against felony charges? According to Rick Perry, upwards of two million dollars, or several thousand times what most Texas counties pay for representation of indigents in non-capital cases.

Perry didn't make that assessment in a speech, of course. But actions speak louder than words and according to his Contributions and Expenditures reports, estimated the Dallas News, he's spent more than $2.1 million on legal fees so far defending himself against charges of abuse of official capacity, no doubt with more to come

Wednesday, July 15, 2015

Some TDCJ treatment programs increase recidivism

A friend forwarded me a copy of this recidivism analysis from Texas Department of Criminal Justice prison rehabilitation programs, lamenting that "some of the TDCJ rehabilitation programs demonstrably make people worse."

Which ones? Four of nine programs showed participants' recidivism increased after two years in the free world, though after three years only two programs - specifically the Sex Offender Treatment Program and the Pre-Release Substance Abuse Program, the latter of which has consistently resulted in increased recidivism since the agency began studying it - displayed higher recidivism rates.

The two programs with worse outcomes after two years that came out slightly better after three were the Sex Offender Education Program and the Serious and Violent Offender Reentry Initiative.

The SAFP program is the TDCJ rehab program with the best results and was the only one to make a double-digit difference.

Guidance released on new truancy law

See more coverage of Texas' new truancy law and an editorial from the Fort Worth Star-Telegram. Meanwhile, the Office of Court Administration has posted materials to guide locals on implementation of the new law:

Tuesday, July 14, 2015

Update on federal crimjust reforms

President Obama delivered a major speech in Philadelphia today on federal criminal justice reform initiatives. (Read excerpts here.) Find below the jump a related press release/fact sheet issued by the White House:

Forensics nuggets

Grits was pleased that an associate turned me onto a blog by Penn State law prof. D.H. Kaye titled "Forensic Science, Statistics and the Law," which I've spent the morning perusing.

While somewhat of a challenge to your correspondent's math skills, the linked resources in this post on sources of error in DNA testing are excellent supplements to recent MSM reports, particularly this recent law review article critiquing common statistical descriptions of the likelihood of a match when trawling large DNA databases.

Especially notable from his archives: Two posts from February discussing error rates among fingerprint examiners, including an adumbration of a study which found a three percent false positive rate (among self-selected examiners who knew they were being evaluated). Most posts are fairly detailed fact-and/or-math-based assessments

Incidentally, Prof. Kaye was one of several authors in 2011 of a paper titled "The need for a research culture in the forensic sciences." So I suspect he was pleased as I was to see that the Texas-based Laura and John Arnold Foundation is funding a massive investigation by the American Association for the Advancement of Science into "the underlying scientific bases for the forensic tools and methods currently used in the criminal justice system," focusing on ten specific forensic disciplines:
  1. Bloodstain Pattern Analysis
  2. Digital Evidence
  3. Fire Investigations
  4. Firearms and Toolmarks/Ballistics
  5. Footwear and Tire Tracks
  6. Forensic Odontology- Bitemark Analysis
  7. Latent Fingerprints
  8. Trace Evidence- Fibers
  9. Trace Evidence- Hair
  10. Trace Evidence- Paint & Other coatings
"Reports will be issued for each of the fields specifying the quality of the existing literature and what research would strengthen the scientific foundation for that area. The project reports are expected to encourage basic research and contribute to improving the quality of forensic science used in the legal system," according to the AAAS website.

Judge Barbara Hervey of the Texas Court of Criminal Appeals is on the project's Advisory Panel. See related coverage from Forensic magazine.

Sunday, July 12, 2015

For the birds: A tale of police and prosecutor overkill, and other stories

 Here are several items which may interest Grits readers:

DPS brass gets massive pay hikes, again

DPS brass continues to enjoy financial rewards that front-line state employees or managers in the private sector could only dream about. Reported the Dallas News, "DPS Director Steve McCraw and 56 agency executives have been given double-digit raises, with most increases reaching 17 percent." Some readers may recall that the Austin Statesman reported three years ago:
When Gov. Rick Perry made Steve McCraw the director of the Texas Department of Public Safety in 2009, only a dozen DPS employees earned $100,000 a year or more at the notoriously tight-fisted agency.

[As of 2012, there were] 73, reflecting an enormous growth in DPS management positions and pay since McCraw, an ex-FBI agent who formerly led the governor’s Homeland Security office, took charge of the department in August 2009.
Under the new management pay scheme, though:
McCraw will now be paid $214,672 annually, up from $183,498. Two deputy directors, David Baker and Robert Bodisch, saw their yearly base pay rise from $176,460 to $206,458.

Figures released by DPS this month show that 15 assistant directors will now be paid $193,330 a year. Seven regional commanders will receive an increase to $176,026. Also, 32 deputy assistant directors will see their annual salaries rise to $161,109.
By contrast, reported the News, "Earlier this year, the Legislature granted many state employees a raise of 2.5 percent to offset increased contributions by workers to their pension fund." So most state employees at best broke even, while DPS managers were rewarded as though they hadn't been responsible for the ignominious failed border surge which has made the rest of the state measurably less safe.

There was no looming threat that these managers were going to leave state employment if they weren't compensated in such an over-the-top fashion. It's not like the free market is offering comparable pay for police administrators. And it begs credulity to imagine these raises were based on pay-for-performance: There's no way managerial productivity gains matched these pay hikes.

A cynic might suggest the state is throwing good money after bad, rewarding folks for going along to get along as first Rick Perry and now the Legislature politicized the agency and its mission. That probably overstates things, just as does the agency's claim that the raises are all merit based. The truth likely lies somewhere in between, though perhaps a bit closer to the cynics' camp than to those justifying the raises.

Saturday, July 11, 2015

Veteran Waco cop 'randomly' chosen foreman of Twin Peaks grand jury

In Waco, District Judge Ralph Strother selected "longtime Waco police officer James Head" to serve as foreman of the grand jury panel that consider the Twin Peaks biker cases.

Supposedly, reported the Houston Chronicle (July 10), "It was McLennan County’s first randomly selected grand jury since legislators eliminated a 'pick-a-pal' system in which judge-appointed commissioners nominated prospective jurors." And it's just random that a veteran cop made the cut the first time out in the highest profile case in the county's history.

Ironically, the new law eliminating Texas pick-a-pal system was created in large part because of the Alfred Brown case in Houston, coverage of which earned Lisa Falkenberg a Pulitzer Prize. A police officer was foreman in that case and it later turned out the grand jury improperly bullied and intimidated Brown's girlfriend into withdrawing her testimony as an alibi witness.

So for the first post-pick-a-pal jury in the county's highest-profile ever case to have a cop foreman beggars belief. The Chronicle quoted state Sen. John Whitmire, who authored the grand  jury reform legislation, blasting the decision:
“It’s exactly those types of circumstances that the new law was meant to do away with,” Whitmire told the San Antonio Express-News on Thursday. “You can’t get that objectivity, in the eyes of the public, if you don’t get that impartial grand jury. You’re starting with a built-in problem, and Waco needs a dose of transparency.”
Even if it's purely random, Judge Strothers should have the sense to bypass Mr. Head and pick somebody else to ensure there's no appearance of impropriety. As things stand, this move reinforces the view that we're witnessing a rigged game in Waco.

MORE: Local lawyers weigh in. AND MORE: From Murray Newman. UPDATE: Via the Houston Chronicle, see a motion filed objecting of Det. Head's participation in the grand jury, which included this old Far Side cartoon characterizing the rigged proceedings:

Bodycam legislation closed too many records

Texas' new legislation related to police body cameras has been mostly praised in the media, but Grits must admit I'm not a fan. Your correspondent didn't have the bandwidth to track the legislation this year, but if I had I've have ardently opposed the version that passed.

Admittedly, the best thing the Lege did on the topic this year was to authorize $10 million in grants for police departments to purchase body cams, reminiscent of a $18 million bond issue in 2003 for in-car dashcams which your correspondent helped push for back in the day.

But the dashcam legislation - which was really part of a larger bill defining and banning racial profiling - did not include the sort of closed records provision in Texas bodycam bill, SB 158, which to me go too far. ACLU of Texas and the NAACP reportedly negotiated these provisions. With all due respect to my friends at those groups, if they really agreed to these closed records provisions then frankly they got rolled.

Under Texas' Public Information Act, police already don't have to release video unless there's a conviction or deferred adjudication in a case. So there exists plenty of discretion to protect privacy in situations where there's no public interest in disclosing the footage. 

At first glance, SB 158 appears to include open records provisions but, on closer inspection, imposed new, needless restrictions. (See text.) For example:
A member of the public is required to provide the following information when submitting a written request to a law enforcement agency for information recorded by a body worn camera:
     (1)  the date and approximate time of the recording;
     (2)  the specific location where the recording occurred; and
     (3)  the name of one or more persons known to be a subject of the recording.
So if you don't know all of those details, you can't access the records. Say you witnessed an event but didn't know the people involved? Can't get the records. Say you know who was involved and the date but not the "specific location"? Can't get the records. Moreover, this would prevent research projects using the video because one could not, for example, get all video for a certain time period if you didn't have the specifics stated above regarding each police encounter.

I really can't think of another brand of open records request where the requester must know so much detail before filing the request. Typically one files open records requests to get that sort of detail, requiring folks to have it up front is an unnecessary barrier.

Another loophole you can drive a truck through: You can't get bodycam videos from misdemeanor traffic stops under an open records request without written permission from the person being recorded, even though about 44% of police encounters with the public are at traffic stops. From the bill:
A law enforcement agency may not release any portion of a recording made in a private space, or of a recording involving the investigation of conduct that constitutes a misdemeanor punishable by fine only and does not result in arrest, without written authorization from the person who is the subject of that portion of the recording or, if the person is deceased, from the person's authorized representative.
As ESPN's Stephen A. Smith might say, that's asinine, assiten, asseleven ...

Consider: Dashcam video is still public at traffic stops but the bodycam video is not? What possibly justifies that distinction? Drivers in public don't have a legal expectation of privacy, so to me this is more about protecting the cop from accountability than enforcing privacy rights.

Ditto for the bit about a "private space." Once you let a cop in your door, you've lost any reasonable expectation of privacy regarding what they see.

And why should open records laws be different for Class C misdemeanors than other offenses?

These are awful provisions from a transparency perspective and, on the whole, I'd have rather no money have been allocated for camera grants at all if the tradeoff was scuttling open records access. Large departments are acquiring body cams anyway and there's also federal money; I don't think this trend is dependent on a small pot of state grant money.

These opacity provisions should be revisited by the Lege in 2017; they're seriously screwed up.

Officials point fingers as Abilene prisons' mid-summer water outages challenge heat-mitigation tactics

A pair of prisons in Abilene have suffered from low water pressure since Wednesday, and TDCJ and local officials are pointing fingers regarding who's to blame. Reported KTXS-TV:
Jason Clark, the director of public information for the Texas Department of Criminal Justice, confirmed water pressure has been low since Wednesday.

Clark said water use is being restricted -- showers and laundry are limited, and water to some buildings is being shut off intermittently.

“When the water is off to those buildings, obviously the persons cannot flush the toilet at that point, but once it comes back on they have the ability to do that,” Clark said. “We're just ensuring we restrict water so we can keep that water pressure up.”

The TDCJ and the city of Abilene are working on the problem. Both say the issue is the other’s responsibility.

“It does not appear at this time that it's [the problem’s] on our property, so they continue to investigate that,” Clark said.

“We suspect there is an issue on their side of the meter,” Rodney Taylor, interim director of water utilities, said. “We really don't have access on that side of the meter to help them resolve the issue.”
Long-time readers may recall that TDCJ is Abilene's largest water user, by far.

This news comes on the heels of a related 5th Circuit ruling. As the Austin Statesman reported, "Wednesday’s appeals court decision said Louisiana prisons could avoid heat-related cruel and unusual punishment by cooling common areas and supplying personal ice containers and ample cold water."

The weather forecast in Abilene predicts highs of 95-99 degrees Fahrenheit over the next few days. How exactly will TDCJ provide ice or cold water if there's not enough water to flush the toilets?

Friday, July 10, 2015

Cold Justice: Years-old Brady violations by TV prosecutor revealed in habeas proceeding

Big news on the Brady front featuring Texas' premier legal TV star, from the Houston Chronicle:
A Beaumont judge who decided that David Mark Temple deserves a new trial in the 1999 slaying of his pregnant wife cited 36 instances of prosecutorial misconduct in his ruling, most of which are tied to legendary former Harris County prosecutor Kelly Siegler.

Because evidence that could have helped his defense was withheld — before, during and after Temple's 2007 trial — attorneys for the Katy man showed that he was denied a fair trial, according to the ruling by state District Judge Larry Gist.
Ironically, Siegler was the chief accuser against Charles Sebesta, the prosecutor in the Anthony Graves case who was recently disbarred for withholding exculpatory evidence. Meanwhile, Judge Gist is highly respected around the state, chair of the Judicial Advisory Council, and a Rick Perry appointee to the board at TDCJ. Him accusing Siegler brings every bit as much credibility to the accusations as did her accusing Charles Sebesta, who somewhere must be grinning from ear to ear at the news. Another Chronicle article declared:
The ruling was a staggering blow to Siegler, a long-time darling of Houston's legal scene and role model for Harris County's prosecutors who won dozens of convictions in her 21-year career. After leaving the district attorney's office in 2008, she worked as a special prosecutor in neighboring counties and made headlines two years later by accusing a rural district attorney of prosecutorial misconduct in a death penalty case.

In recent years, Siegler has garnered a celebrity status, starring in "Cold Justice," a nationally televised show in which she helps small law enforcement agencies across the country secure indictments in cold cases.
The Houston Press called the Temple prosecution:
a high-profile case pitting two outsized egos — Siegler and defense attorney Dick DeGuerin — against each other. ...

"Both were famous and neither could stand losing to each other," Gist wrote in his 19-page recommendation, issued Wednesday.
Here's a copy of Judge Gist's 19-page findings of fact and conclusions of law, which is worth reading in its entirety. There were several money quotes from the ruling, but this one's a doozy: "Of enormous significance was the prosecutor's testimony at the habeas hearing that apparently favorable evidence did not need to be disclosed if the State did not believe it was true." (Emphasis in original.) Before passage of the Michael Morton Act, this was actually a fairly common contention among Texas prosecutors, at least of the more aggressive sort. I bet there are quite a few who see Siegler dinged over that policy and whose palms begin to sweat. She was not alone in that contention back in the day.

Another trial trick Siegler couldn't have gotten away with under the Michael Morton Act: "The Prosecutor also testified that although a large number of investigators were involved, she only elected to call a small number because she did not want the defense lawyer to have access to their offense reports. At the time of this trial, the State was only obligated to provide offense reports after a law enforcement officer had testified." Today, all those records would be required to be revealed to the defense in advance of a trial.

Gist specifically found that Siegler misled the trial court. A Det. Shipley omitted favorable information from her offense reports when paraphrasing audio recordings, and "The main prosecutor denied ever having seen or listened to these audio recordings when in fact she was aware of them and had listened to them." Further, at a discovery hearing Siegler represented to the court there was no exculpatory evidence to reveal when in fact a woman had called police to say her husband may be the murderer, a fact not disclosed till just before trial.

And here's a bit that may put Siegler's own law license at risk: "After conviction, the State's main prosecutor instructed law enforcement and District Attorney Officials not to disclose records pursuant to an Open Records Request. Disclosure was only made after these writ proceedings were initiated." That means the statute of limitations on state bar disciplinary proceedings didn't begin to toll until the violations were disclosed in Judge Gist's court.

One of West's attorneys, Paul Looney, speculated to the Houston Press that Siegler would lose her law license over the episode and potentially face prosecution: "If Kelly Siegler's a lawyer in five years, I'll be shocked," Looney said. "And if she's not a felon in five years, it'll be because [District Attorney] Devon Anderson decided to protect her own friend."

After Siegler signed off on Anthony Graves' innocence findings as a special prosecutor, Grits emailed her congratulations, quoting Court of Criminal Appeals Judge Michael Keasler declaring that, in order to remain ethical, an attorney must be willing to lose. Clearly, though, Siegler herself wasn't immune to a win-at-all-costs mentality.

MORE: Lisa Falkenberg says "good prosecutors don't have to cheat to win." RELATED: In a timely coincidence, Charles Sebesta has appealed his own disbarment for concealing exculpatory evidence in the Anthony Graves case.

5th Circuit: Hot prisons may be cruel and unusual, but A/C not required

Texas may not be required to air condition its prisons, but there's a good chance they'll need additional heat mitigation measures judging by a federal court ruling this week. The Fifth Circuit Court of Appeals overruled a Louisiana judge who'd ordered air conditioning on death row because of excessive heat, but at the same time "stated that extreme temperatures in prison cells can violate the Eighth Amendment’s restriction on cruel and unusual punishment." Reported the Austin Statesman (7/10):
What’s more, the federal court said inmates don’t need to show that hot temperatures caused death or serious injuries to prove that prison conditions are unconstitutional.

“They need only show that there is a substantial risk of serious harm,” [Judge Edith] Jones wrote.

The ruling by the 5th Circuit, which also has jurisdiction over Texas, could prove important for similar legal challenges in the Lone Star State — particularly a lawsuit scheduled to go to trial in February that claims at least 12 Texas prisoners have died from heat stroke since 2011, while hundreds of others experienced heat-related illnesses.
Regarding possible additional measures, "Wednesday’s appeals court decision said Louisiana prisons could avoid heat-related cruel and unusual punishment by cooling common areas and supplying personal ice containers and ample cold water, as well as by providing many of the solutions used in Texas prisons."

One difference between the Texas and Louisiana litigation is that here the suit was joined by prison guards complaining of extremist working conditions. One wonders, since the 5th Circuit declined to combine the cases, if the focus on employment conditions as opposed to incarceration conditions might provide an additional foothold. Regardless, TDCJ can now see the bare minimum improvements needed to mitigate overheated prisons; they shouldn't wait for a court order before beginning to deploy them.

See related Grits posts:

Thursday, July 09, 2015

Rick Perry's race speech and criminal-justice reform

Rick Perry's speech to the National Press Club arguing why black people should vote Republican has received wide attention, and Grits has little to add on questions about race and politics it posed which haven't already been discussed at length elsewhere.

Instead, the speech interested me because Perry's main claim to addressing the needs of black folks, besides job creation, involved reforming the criminal justice system. According to Rick Perry, Texas has:
found a way to reduce crime, while we’re also keeping kids out of jail. In 2014 Texas had the lowest crime rate since 1968. And, at the same time, we closed three prisons and reformed our sentencing laws. Too many prisons—or I should say too many Texans were going to prison for nonviolent drug offenses. And, once they got out of prison, many of them found they couldn’t get a job because they had a criminal record. I'm pretty sure nobody in here gets confused that Texas is a soft on crime place. But I also believe, like Texans believe, in consequences for criminal behavior, but I also believe in second chances and human redemption, because that too is part of the American story. 

Americans who suffer from an addiction need help. They don’t need moral condemnation. By treating alcohol and drug abuse as a disease, we’ve given Texans who have experienced a run-in with the law the help that they need, the rehabilitation that many seek. And now, many of those individuals are living in recovery. They're engaged in saving the lives of others who are trapped in addiction.
Now, to be clear, I've insisted in the past that Perry be given credit where credit is due on these topics: He signed many criminal-justice reform measures while Governor, though he also vetoed and stymied quite a few others. Still, this speech represents a new position for Perry, not an iteration of his Texas record.

Not once until he was on his way out of office - certainly never when it mattered in the legislative process - did Rick Perry come out as ardently for criminal-justice reform as in this speech.  If he had, there's little doubt reformers would have accomplished more during his tenure.

To be blunt: Texas still incarcerates more people than any other state, by far. Along with our neighbor Louisiana, we're for all intents and purposes the global epicenter of mass incarceration. It's simply not true that we're "treating alcohol and drug abuse as a disease" instead of with "moral condemnation." Declaring an activity a crime and prosecuting people who engage in it is by definition "moral condemnation." Yes, more people get treatment now through local probation departments, but it's a sham to claim Texas treats "drug abuse as a disease." We treat it as a crime.

Texas cycles low-level drug users though the criminal-justice system by the thousands, including quite a few who didn't actually possess drugs. It's true, Perry signed into law probation reforms that included substantial treatment dollars, after vetoing essentially the same measure two years prior. But legislation to reduce penalties for low-level drug possession so the savings could be spent on treatment ran aground both in Perry's administration and this year in Greg Abbott's, with neither man lifting a finger to help nor uttering a supportive word. Republicans in Texas have shown little stomach so far for truly treating addiction as a disease - i.e., as a medical issue instead of a crime.

For that matter, to the extent that Medicaid would pay for drug treatment and mental health services that would ACTUALLY treat addiction as a healthcare issue, it's hard to take this "treat it as a disease" rhetoric seriously from someone who so ardently opposed extending health coverage to poor people. In his speech, Perry declared that the uninsured are just as well off as those covered by Medicaid, but that's an easy claim to make for somebody who has health insurance himself.

Finally, Texas has done scarce little to help folks who "couldn’t get a job because they had a criminal record": At most, we've piddled around the margins. That was never a priority for Rick Perry, certainly not the way he championed issues like border buildup, nor even the HPV vaccine or the Trans-Texas Corridor. He allowed others to do small things but his own actions were, at best, modest.

To be clear: Most other states would justly look at Texas' bloated criminal justice system with equal measures of disdain and incredulity. I'm glad Rick Perry is now advocating these things. And I don't begrudge a politician whose views change over time. Who among us doesn't learn and grow as we age? But everyone should be clear that this rhetoric is aspirational regarding the future, not descriptive of the past.

Wednesday, July 08, 2015

Odds and Ends on a busy day

While Grits' attention is focused elsewhere, here are several items which deserve readers' attention:
  • The epicenter of marijuana legalization advocacy in Texas lies not in Austin but in El Paso.
  • New York will now use special prosecutors in police misconduct cases, a proposal considered in Texas this spring which regrettably failed to gain traction.
  • In an editorial lamenting jail overcrowding and the role of bail in heightening pretrial detention levels, the Houston Chronicle concluded that, "It is the job of our courts to distinguish the guilty from the innocent, but right now we're doing a better job of separating the wealthy from the poor."
  • NPR has a story on innocent bikers caught up in the police sweep following the Twin Peaks massacre in Waco.
  • Our pal Maurice Chammah has a series for the Marshall Project on "How Germany Does Prisons." See also this discussion of solitary confinement in Germany, which is rarely used.
  • An addition to Grits' summer reading list: From the Congressional Research Service, "Risk and Needs Assessment in the Criminal Justice System."
  • I'd missed this from the Vera Institute when they released it in May: "The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration."
  • Grits remains a big fan of Alexandra Natapoff and was delighted to discover her new paper on public defenders and the criminalization of poverty. From the abstract: "In ways that slip beneath the doctrinal radar, public defenders often behave like social workers. They find drug treatment and jobs for their clients, and intervene with landlords and employers. Conversely — and ironically — many civil welfare service providers act increasingly like law enforcement officials. This role-switching — by criminal lawyers and civil servants alike — is a function of the tight connection between criminalization and poverty: poor people tend to get swept up in the criminal system and such encounters tend to make people poor. This nexus is particularly powerful in the world of minor offenses and urban policing in which crime, unemployment, racial segregation, and lack of social infrastructure swirl around in one large, nearly inextricable mass."

Tuesday, July 07, 2015

New police hires declining, safety of cops' job lauded

In a story about police officer hiring (July 6), the Dallas News, reported that fewer officers are being hired across the state in part thanks to fewer veterans leaving the job. "Dallas is also hiring fewer officers than before. So is the rest of the state, overall. The Texas Commission on Law Enforcement issued 467 fewer peace officer licenses in 2014 than it did in 2007."

Moreover, Grits was interested to read a rare admission regarding the relative safety of police officers' jobs from Phillip Lyons, the dean of the College of Criminal Justice at Sam Houston State University. He told the paper:
As for safety concerns, Lyons said the job isn’t as dangerous as it once was.

“Even though there is a hysteria about the war on police, a lot of times, the numbers don't bear that out,” he said. “This is one of the safest times in American history to be a police officer.”
Because when you're recruiting, that "cops put their lives on the line every day" stuff becomes counterproductive. In that setting, factual assessments of the relative dangers of policing are more effective at convincing folks to take the job. There's plenty of time to teach recruits the ins and outs of official demagoguery on that topic once they've been through the academy.

Monday, July 06, 2015

Ramping up debtors' prison in Waco

In McLennan County, Municipal Judge Christopher Taylor changed the policy regarding incarceration for unpaid traffic tickets, insisting that anyone who can't pay in full must "sit behind bars for time credit." The Waco Tribune Herald  reported on the issue July 5 in an article titled "Run a red light in Waco? Now you could land in jail":
Most drivers pay [a] fine after making a promise to the judge they will pay a certain amount by a certain date, Taylor said. If that individual doesn’t pay, an arrest warrant is issued, and the person can be re-arrested. After a few hours in jail, the individual goes before the judge again, promising to pay the penalty fees.

Taylor said that’s about to change.

Once a person has not made payments and is arrested again, he said, the individual will be required to pay in full the remaining amount right then, or sit behind bars for time credit.
Ridiculously, "Waco Mayor Malcolm Duncan Jr. said the idea started as a way to help residents by allowing them to sit out a payment from behind bars and not just accumulate additional fines that they can’t get out from under." So the city is pretending they're doing broke drivers a favor by incarcerating them for nonpayment. I bet you they don't receive many "thank you" cards.

Grits passed along this atrocity of a policy to our friends at the Texas Fair Defense Project and their staff attorney Emily Gerrick had this to say:
The title of the article is strange to me, since the Waco municipal court has been jailing low-income people at incredibly high rates for a long time now. In 2013 alone, Waco jailed people in more than 10,000 cases for debt stemming from traffic tickets and other class C misdemeanors.

Putting traffic offenders in jail just because they can't pay something does not improve public safety. Instead, it costs struggling people their jobs and traumatizes their children. Waco needs to stop wasting taxpayer dollars on jail beds for debtors and start thinking about what's best for its residents. 
I think the most important thing for Waco to do is to start utilizing statutory waivers. Waco's self-reported data indicates that it waived debt in 0 cases in 2013, and that figure is consistent with an independent OCA study from 2011. Waco is also very hesitant to use statutory payment alternatives like community service. While more than 60% of 2013 cases included jail credit, only about half a percentage point of cases included community service credit.
So Waco is already using jail disproportionately to punish Class C misdemeanors, never waives fines, and almost never utilizes community service. In other words, Taylor's new dicta just doubles down on a bad policy.

Further opined Gerrick, Waco could also use "positive tools to encourage on-time payment of fines instead of relying on heavy-handed and expensive strategies like ordering jail time for failure to pay," including "amnesty days and in this particular instance some leeway and adjustments of payment plans when somebody misses a payment instead of automatic issuance of a warrant."

That'd be wiser and more cost effective than jailing anyone who can't pay. But this policy change is more about Waco's pointlessly punitive local legal culture more than any legitimate public safety goal. "Cost effective" really isn't an issue at play.

Rigged game in Waco

One of the few bright spots coming out of the Twin Peaks massacre in Waco is that Tommy Witherspoon of the Waco Tribune Herald, one of the top crime-beat reporters in the state, for Grits' money, is on the scene to cover it. (I just wish the inestimable Cindy Culp were around to tag-team with him.) Witherspoon reported in Friday's paper:
A hearing Thursday for a disabled Gatesville Army veteran who rides with the Cossacks Motorcycle Club included a strong challenge to the probable cause used to arrest 177 bikers in the wake of the May 17 Twin Peaks shootout.

Ronald Atterbury’s attorney, John H. Jackson, who also is a former state district judge from Corsicana, attacked the probable cause reported in Atterbury’s arrest warrant affidavit, which is identical to the others used to detain bikers en masse after the melee that left nine dead and 20 injured.
Officials used identical documents, labeled “cookie-cutter” by defense attorneys, changing only the names, to apply the same conduct to all those jailed.

Jackson was not successful in getting the charges dismissed, but convinced 54th State District Judge Matt Johnson to reduce Atterbury’s bond from $1 million to $40,000.

Jackson called Waco police Detective Manuel Chavez as a witness to describe how the affidavits were drafted. To obtain the arrest warrants, Chavez swore before a judge as to their content. He testified Thursday that the document was written by prosecutors in the McLennan County District Attorney’s Office on the day of the shootout.

Chavez admitted he didn’t know if Atterbury, 45, committed any of the offenses alleged in the affidavit and acknowledged that the affidavit does not accuse Atterbury specifically of any wrongdoing besides being a member of the Cossacks.

“Is membership in one of those organizations a crime?” Jackson asked. Chavez answered, “No.”
“You did not furnish any information to Judge (Pete) Peterson that my client committed any crime, did you?” Jackson asked.

Chavez said, “No, sir.”

Peterson, a justice of the peace, issued the arrest warrants and set $1 million bonds for each biker.
So, the cop who wrote the arrest warrant affidavit says he did not furnish any information to the Justice of the Peace charged with making the probable cause determination which indicated the defendant "committed any crime." Yet, District Judge Matt Johnson "ruled that probable cause was sufficient to support Atterbury’s arrest."

Talk about a rigged game!

Harris County suspends DNA testing in property crimes, citing volume

The Harris County crime lab (different from the city crime lab spun off from Houston PD) has suspended touch DNA testing because of volume, reported the Houston Chronicle (July 4).
the Harris County Institute of Forensic Sciences has sent out a memo to the 69 law enforcement agencies it serves suspending touch DNA analysis due to diminished resources and burgeoning demand.

Officials were forced to temporarily halt the service, ironically, because testing for touch DNA has been so successful.

"We didn't anticipate this remarkable growth and what law enforcement has done to embrace DNA testing services in general," said Dr. Roger Kahn, the forensic institute's crime laboratory director. "We need to reassess our service levels in order to keep up."

The suspension will not affect the Houston Police Department, which relies on the city's crime lab to perform DNA analysis. The Houston Forensic Science Center began performing DNA analysis in some property crime cases after the city cleared HPD's backlog of thousands of rape kits awaiting DNA testing.

But the county crime lab's suspension of the cutting-edge forensic testing, which it took the initiative to offer eight years ago, could impact property crime investigations for dozens of law enforcement agencies.
Here's a graphic from the Chronicle depicting the proportion of DNA testing at the lab attributed to touch DNA in property crimes vs. the total:


FWIW, the folks who "didn't anticipate this remarkable growth" clearly were not blog readers. Grits has been prophesying this conundrum for years, e.g.:
Texas and the larger jurisdictions like Harris County and Houston have invested heavily in new and expanded crime labs in recent years, and it's still not been remotely enough to handle the incoming volume, as evidenced by Harris County's decision to suspend DNA testing for property crimes.

Sunday, July 05, 2015

Addendum to good bills passed in 84th TX Legislature

Reacting to Grits' Greatest Hits compilation on criminal-justice reform from the 84th Texas Legislature, state Rep. James White, vice chair of the Corrections Committee, emailed yesterday to suggest I'd missed a few with which he was involved, particularly on the juvenile front:
  • SB 183: Penalizing civil rights violations and improper sexual conduct with persons in custody.
  • SB 409: Limiting dissemination of fingerprints from the juvenile system.
  • SB 1024: Clarifying the authority of the Windham School District to issue high school diplomas.
  • HB 431: Creating an advisory committee "to examine and recommend revisions to any state laws pertaining to juvenile records."
  • HB 1930: Requires local probation departments to have a written strategic plan.
He also said HB 2398, which I'd categorized as merely decriminalizing truancy, "could be described as an omnibus bill" including all the bills here, here, here, here, here, here, here, here, here, here, and here.

So there you go. Good clarification on the "omnibus" [read: Christmas tree] bill. And while none of the other bills would have displaced those on my own list based on level of import, it's definitely true that more good stuff (and more bad) happened this spring than this blog has portrayed. Thanks, Rep. White, for the update.

Saturday, July 04, 2015

Historical lament over habeas limits, partisan election of DAs

Grits was pleased to learn from the newsletter of the Texas Supreme Court Historical Society of the Texas Constitution History blog, a project of Justice Michael Massengale of the First Court of Appeals. Give it a look-see.

Browsing around, I found transcribed a letter from a minority report from a committee in the 1869 constitutional convention, the Reconstruction Convention, which lamented several recommendations not adopted by the convention which their committee had championed, including two which perked up your correspondent's attention: Habeas corpus powers for district judges and appointment instead of election for District Attorneys:
The undersigned would also recommend that special authority be conferred on district judges to grant writs of habeas corpus, as recommended in the majority report.

The minority of the committee agree also with the majority in recommending that the district attorneys shall be appointed by the Supreme Court and commissioned by the Governor.
Texas district judges had enjoyed habeas authority since the inception of the Republic, so this was a big change. Grits has discussed before how, historically, nearly all legislative interventions into habeas corpus reduce judicial power, and this was no exception. (That's part of what makes Texas' junk science writ so remarkable - there are few other examples which I can find of legislatures in any jurisdiction expanding habeas power instead of the courts.) Here we see in 1869 one of the more radical reductions in Texas judges' habeas power - removing it from the hands of the front-line ministers of justice and reserving it for the bigshots in Austin.

For that matter, how different would the criminal justice system be today if District Attorneys were "appointed by the Supreme Court and commissioned by the Governor" instead of popularly elected on a partisan basis? We hear proposals in the modern era regarding appointment vs. election of judges, but appointment of DAs could augur even happier results. Perhaps having Texas DAs appointed by the Supreme Court is a suggestion which needs to be revived?

Friday, July 03, 2015

The Un-Exonerated

Fran and Dan Keller never molested any children at their Austin day care as part of a satanic cult, as Travis County prosecutors alleged at their trial. But they are unlikely to ever be declared innocent by the courts, reported Craig Malisow at the Houston Press. He encouraged people to read Keith Hampton's 14-page motion for rehearing (pdf) on the Kellers' innocence claim, which was denied. A gubernatorial pardon, presumably, remains their last option.

The San Antonio Four so far find themselves in a similar situation, as does Hannah Overton, Kerry Max Cook and too many others to name: Liberated, but un-exonerated.

A tale of two counties' jail populations

Here's an odd development: The Harris County Jail is so full they're having to ship inmates to contract beds in other counties, while the Dallas County Jail population has plummeted.
A DOJ statistician told the Morning News that "Texas’ entire jail population has been in decline since 2010," a trend upon which this blog has remarked for some time.

The causes of Harris County Jail overcrowding and the obvious solutions should by now be so familiar to Grits readers I shall not recite them here. The Morning News suggested five causes for the reduction in jail population in Dallas:
  • Fewer arrests: "So far this year, there have been fewer new arrivals than in 2013 and 2014."
  • More diversion programs, including one in which "Low-risk offenders who can’t post bail can pay a small fee and get out before their trial dates," i.e., personal bonds. 
  • New software lets "Cases ... be presented to grand juries faster, which shortens jail stays"
  • Quicker prep for TDCJ pickup: Everybody cites this but one seldom sees data to support the claim. 
  • Inclement weather: Understandably, upon reflection, crime goes down when it rains.
MORE: From Hair Balls and Kuff.

Wednesday, July 01, 2015

Criminal justice reform accomplishments from the 84th Texas Legislature

Grits had earlier suggested that the 84th Texas Legislature was characterized mainly by missed opportunities on criminal justice reform, and part of me still feels that way: I remain unhappy that they failed to do much to curb police abuses or rein in asset forfeiture. And except for adjusting property thresholds for inflation, they largely failed to address sentencing, allowing the corrections budget to balloon massively. The deaths of widely supported bills like ban-the-box, raise-the-age, and needle exchange were dispiriting. I also find the border buildup to be one of the most irresponsible boondoggles I've ever personally witnessed. Finally, when Greg Glod of the Texas Public Policy Foundation lauded this session's accomplishments, I found myself underwhelmed with the examples he cited. "Weak tea," I thought. (And I still don't quite understand how you'd look at this session and highlight those bills!)

Even so, now that the dust has settled following the veto period (and the Governor vetoed a couple of good criminal justice bills based on deeply flawed reasoning), Grits must admit that the big reform bills passed this session, taken together, constitute a pretty impressive array of criminal-justice policy accomplishments. They just weren't the things most people were focused on when the session began. To me, these are the highlights, in no particular order:
  • Adjust property thresholds for inflation. Passed as an amendment after a senate bill failed to get a House floor vote, this legislation will reduce incarceration for property crimes at the margins in a move Grits has advocated for years. The big budget impact will come from shifting state jail felony charges to the misdemeanor courts and reducing the proportion of theft cases charged as serious felonies based solely on the property valuation.
  • Diligent participation credits for state jail felonies. State jail felons can now earn sentence reductions through diligent participation in education, vocational, treatment, or work programs.
  • Eliminated the pick-a-pal grand jury system. A significant change, Grits remains a bit emotionally winded from the drama surrounding its passage. I'd considered this a lesser reform in a sense because we were literally the last state to do it; Texas wasn't leading the way on this one, we were bringing up the rear. But smarter folks than myself assure me this is no small thing. While there's more to do, with hindsight I'm starting to feel pretty good about this one.
  • Decriminalized truancy. Like grand jury reforms, this basically brought us in line with virtually all other states. But we're talking about diverting tens of thousands of juvenile cases out of the criminal justice system which is nothing to sneeze at. Between this and the state eliminating most Class C ticketing in schools last session (another John Whitmire bill), Texas has pretty quickly moved away from treating low-level juvenile behavior through the justice system.
  • Shifted juvenile incarceration from state youth prisons to regional detention centers. Somehow the estimates for how many kids would be shifted to counties under SB 1630 declined over session. At one point, press accounts had the final number at 200-300 kids in youth prisons post-reform; by the end of session the estimates were 700-800 kids remaining, down from 1,100. Either would be significant but, having not tracked the bill closely, Grits remains unsure whether it's the estimate that changed or the underlying policy.
  • Created innocence commission to study causes of false convictions. This is a well-timed project; Texas has passed all but one of the recommendations from the last such study panel.
  • Afforded habeas corpus relief to defendants falsely convicted based on junk science. Grits readers are sick of hearing about this one, but I'm still giddy the governor signed this thing.
  • Provided counsel for habeas corpus petitioners in agreed cases. In innocence cases or other situations where the state agrees a defendant is entitled to relief, judges must now appoint a lawyer. This will also provide a vehicle for representation of clients convicted of crimes which were later struck down as unconstitutional.
  • Expanded jurisdiction of the Office of Capital Writs to include forensic writs referred from the Forensic Science Commission. Likely few cases will be referred in the near term - they got no additional budget to go along with the new authority - but the cases they do get are likely to be important, with the potential to impact big swaths of the system.
  • Required licensure of forensic analysts by 2019. And with a license comes the ability of the state to revoke a license. This is a significant accountability reform.
  • Provided notice to defendants when courts schedule an execution. Hard to believe that wasn't required before, but there you go (see a discussion here).
  • Expanded access to post-conviction DNA testing: Every few years, the Court of Criminal Appeals says someone can't get testing done under Ch. 64 of the Code of Criminal Procedure and the Lege tells them they can. SB 487 was this year's version.
  • Reformed sex offender civil commitment program. Not a complete fix for the failing program, since it didn't address the lack of available housing, but a big, important bill.
  • Funding bodycams: The Lege approved a $10 million grant program for body cameras, though Grits is not so enamored of the rest of the bodycam legislation.
  • Reviving in-person visitation: The Lege insisted that jails cannot eliminate in-person visitation when they expand to include video visitation, but grandfathered a baker's dozen facilities that changed their policies before the state changed the law.
Taken as a whole, that's a non-trivial amount of reform legislation passing. It's just the trajectory didn't follow the path most observers anticipated (except, perhaps, for John Whitmire, who authored more than his share of bills that became law this go-round).

Yes, with the exception of the property threshold and diligent participation bills, the Lege failed to address Texas' fundamental over-reliance on mass incarceration. But neither would it be fair to disparage or poo poo how much was accomplished.

MORE: State Rep. James White offered an addendum to this list.