Wednesday, December 07, 2016

Roundup: Jean Valjean at Christmastime and other stories

Here are a few odds and ends which haven't made it into individual Grits posts during a busy week but which merit readers' attention:

Draconian enhancements based on decades-old offenses
Thanks to "enhancements" based on felonies committed two decades ago, a Hays County man received a six-year sentence for stealing $45 worth of ground beef and toys for his children from a Walmart just before Christmas last year. The kicker: Texas Supreme Court Justice Jeff Brown was foreman of the jury who convicted this latter-day Jean Valjean. Les Miserables similes aside, there needs to be some statute of limitations on how long old convictions can be used to enhance new misdemeanors into lengthy prison sentences. Nothing about what this guy did 20 years ago predicts that he's a danger today; in fact, the nature of this latest trumped-up "felony" indicates his priorities have shifted. The fellow committed what otherwise would have been a Class C misdemeanor theft so he could give his kids a modest Christmas, and "To love another person is to see the face of God."

Judges call for independent crime lab
Travis County judges are calling on the city to separate its crime lab from the Austin Police Department, a move presaged by recommendations from the National Academy of Sciences in its landmark 2009 report. Grits agrees with that assessment, with one caveat: They should make the lab truly independent, as was done in Houston. What they shouldn't do is shift those functions to the county medical examiner, as some have suggested. Let's please do this right the first time. In related news, Sen. Cornyn is pushing legislation to reauthorize federal funding for crime labs and reducing rape kit backlogs.

Contempt of cop: A case study
This article from Meagan Flynn at the Houston Press depicts a class example of an arrest for "contempt of cop" by a Harris County Sheriff's deputy.

Can bureaucracy prevent jail suicides?
Despite this Texas Tribune story, Grits suspects that far too much credit is being given to a new intake form when it comes to reducing jail suicides. We'll have to see if reductions hold long-term. But it's just as likely that jails stepped up prevention efforts because the Commission on Jail Standards began making suicides a greater point of emphasis and Sheriffs didn't want to end up in the paper with the next Sandra-Blandesque death occurring in their facility. If that's the case, suicides will continue to fluctuate and may go back up as new incidents arise. I hope I'm wrong, but it seems hard to believe such a small bureaucratic change could make a huge dent in a problem rooted deep in the human psyche. My instincts say to look for a) alternative explanations and b) future increases.

Veterans courts are cool, but don't scale up
This Houston Chronicle article touts veterans courts as an intervention that works, and they do, but it's also true that they're resource intensive and don't scale up well given the volume and gaping needs of the target population. Reported the Chron, quoting the judge in charge of the project: "The common denominator of the veterans in his court is a 'very low sense of self-esteem and self-purpose,' along with self-hate." But couldn't you say that about defendants in every criminal courtroom in America? Strong probation methods work, but they require more resources than most county governments are willing to provide, and you can't place it all on the backs of defendants through expensive court fees. These courts are important experiments, but they are not yet scale-able solutions and are unavailable to most veterans who commit crimes.

Asset seizures skyrocketed since turn of century
Total assets seized by Texas law enforcement increased more than 150 percent from 2001 to 2013, according to Right on Crime. At this point, agencies have become reliant on the income in unhealthy and problematic ways. If the interdiction strategy were working, one wonders, wouldn't authorities seize LESS illicit assets over time?

LWOP for illegal immigrants makes no cost-benefit sense
Here's a legislative proposal that would cost a small fortune with little public safety benefit to show for it: Authorizing life without parole for first-degree felonies committed by illegal immigrants. Life without parole didn't exist in Texas until 2005, when death penalty abolitionists made a deal with the devil, creating the new punishment as the sole alternative available to their clients in death-penalty cases. IMO that legislation threw their clients under the bus. Since then, we've seen hundreds of people sentenced to LWOP while death sentnences dropped. But LWOP is also a death sentence, just in slow motion. Next we had people wanting LWOP for sex offenders, then for sex traffickers, and not for illegal immigrants. There's no public safety argument for this policy and the cost-benefit analysis cannot stand up to scrutiny. This is just pandering to nativist sentiments in a crass and ham-handed way. One hopes cooler, wiser, and more cost-conscious heads will prevail as the bill is considered at the Lege.

1033 program: Not as free as 'free' sounds
Lots of Texas agencies got "free" personnel carriers through the Pentagon's 1033 program, but the Texas Public Policy Foundation points out that that statement masks significant costs to locals from operating the vehicles.


CAN-DO Clemency
Grits was interested to learn of the CAN-DO Foundation, which stands for Clemency for All Nonviolent Drug Offenders. As folks push Obama to maximize his use of clemency on his way out the door,  it's worth mentioning there's still time for him to posthumously pardon the writer O. Henry, as this blog along with Pete Ruckman has long advocated.

Locked up for the holidays
In an item titled, "Locked up for the holidays," the Pew Charitable Trusts' Stateline site examined the impact of the holiday season on inmates and their families and charity work aimed at supporting both.

Tuesday, December 06, 2016

Burton files bill to end Class C arrests like Sandra Bland's

Texas State Sen. Konni Burton today filed SB 271, which would eliminate most arrests for Class C misdemeanors like the one that triggered Sandra Bland's arrest, incarceration, and ultimate demise. As Grits emphasized over the weekend speaking to members of the group Faith in Texas, if the trooper in Bland's case had not had authority to arrest her for failing to signal a lane change, she'd still be alive today teaching at Prairie View and we'd never have heard her name. This change in the law, had it been in place at the time, would have stopped that chain of events in its tracks.

This really good, important bill comes to us as a slightly stronger version of legislation which passed in 2001 right after the original, bad Supreme Court ruling, only to face a veto by then-rookie Gov. Rick Perry. Back then, we called this idea the "soccer mom" bill after Gail Atwater, who was arrested in Lago Vista with her child in the car for a seat belt violation and appealed her case all the way to the US Supreme Court. At the time, because Atwater was white, well-to-do, and personally came to the capitol to front the cause, there weren't the same racial connotations framing the issue in the public sphere the way there are now. But, at root, Atwater and Bland faced similar overreach by police officers at their respective traffic stops. The main difference: Atwater had resources to get out of jail more quickly, while Bland was required to wait just a little longer than she could bear.

Good luck to Sen. Burton: I'm excited about the bill's prospects and the proposal should draw strong bipartisan support. Indeed, that part should be fun: This is one of those issues which separates wheat from chaff in both parties: It divides Republicans who really want less government from those who just talk a good game. And it flushes out all the Dems whose fealty to "civil rights" ends at voting rights but somehow never extends to the 4th, 5th, and 6th Amendments if the police unions complain.

Time will tell, but IMO the bill's got a decent shot.

MORE: From Restore Justice.

Underfunded police pensions plague big Texas cities

Texas police and fire pensions in the big cities are a mess the legislature is ill-prepared to deal with in the coming 85th session. The cost of a possible bailout is too large to consider during a budget-year bleeding with red ink, but other alternatives require ignoring fundamental economic realities that could bankrupt the state's largest cities. Reported the Texas Tribune:
Austin, Dallas, Houston and San Antonio collectively face $22.6 billion worth of pension fund shortfalls, according to a new report from Moody’s, the credit rating and financial analysis firm. Moody’s analyzed the nation’s most debt-burdened local governments and ranked them based on how big the looming pension shortfalls are compared with the annual revenues on which each entity operates.
“Rapid growth in unfunded pension liabilities over the past 10 years has transformed local governments’ balance sheet burdens to historically high levels,” the report says. ... 
Houston, which came in fourth, faces a $10 billion shortfall, according to the report. That amount is more than four times the city’s annual operating revenues.
In Dallas, the Mayor has sued in a personal capacity to stop payouts that would bankrupt the pension fund and, ultimately, the city. According to the Dallas News, "hundreds of police officers and firefighters have become millionaires while insulated from the whims and risks of the markets." Moreover, “More than $500 million has been withdrawn from the $1.5 billion fund this year,”

One big issue which Grits had highlighted earlier is the pension funds penchant for excessive optimism when predicting future growth rates. According to the Tribune;
Moody’s applied its uniform analyses and formulas to the myriad governmental entities so that consistent comparisons could be made. But the firm’s process also resulted in different shortfall amounts than government agencies may estimate themselves. One reason for the differences is that Moody’s used each funds’ recent growth rates to estimate future fund balances, while many governmental entities estimate that their funds will draw higher growth rates in the future. 
For instance, Dallas reported a 5.4 percent growth rate that would put its shortfall at $5.4 billion. But Moody’s found the city’s pension fund was growing at a rate of 3.95 percent at the end of 2014. It calculated a higher shortfall of up to $7.6 billion. 
Houston reported a 7.72 percent growth rate and a $4.9 billion shortfall. Moody’s concluded that the city’s pension funds were growing at 4.44 percent in mid-2015 and adjusted its shortfall estimate to $10 billion. 
The report concluded that both Dallas and Houston in 2015 likely exacerbated their pension problems because they each contributed less to their funds than what was needed to keep the shortfalls from growing. Moody’s also downgraded the credit rating for both Dallas and Houston to AA3 this year. Unfunded pension liabilities were a primary driver in Dallas’ downgrade, whose outlook was also revised to negative.
Though, in the press, Houston's situation is always portrayed as less dire than in Dallas, it's worth noting Moody's downgraded both cities to the same levels. That's particularly salient once you account for Houston's high-balled estimated growth rate. Both of these pensions are in bad shape.

Already facing a multi-billion dollar shortfall, it's hard to imagine the Legislature effectively dealing with this issue next spring. But given how close the cities seem to be to full-blown catastrophe, it's possible they won't have a choice. If it comes to that, look for them to deal with it in a special session. I don't believe anyone is walking into opening with a set of real-world solutions that would satisfy everyone, and the issue is too big, complex, and involves too many powerful, interested parties to resolve in just a few months.

Sunday, December 04, 2016

Municipal court revenue stayed high though traffic tickets, warrants, plummeted

Grits has remarked in the past that the number of traffic tickets given by Texas law enforcement has precipitously dropped in recent years. Nobody knows for sure the reasons for these reductions in tickets and warrants, though the Austin Statesman has published the most thorough exploration of the topic. But I should have also considered that the number of arrest warrants for Class C misdmeanors has concomitantly declined. A check of Office of Court Administration data this morning confirmed that hunch.

In FY 2015, municipal courts issued 1.738 million arrest warrants for Class C misdemeanors, roughly the same as FY 20142 1.731 million and a few more than the 1.667 million in 2013. But check out the totals for the years before that:
2012: 1.871 million
2011: 2.870 million
2010: 2.754 million
2009: 2.708 million
2008: 2.534 million
2007: 2.375 million
2006: 2.046 million
2005: 2.290 million
2004: 2.100 million
Source.
However, another bit of datum I noticed was counterintuitive: Revenues from municipal courts did NOT decline as rapidly as the number of warrants issued. The number of Class C arrest warrants dropped 42 percent from 2011 to 2013, for example, rising slightly thereafter. Revenue from municipal courts, however, only dropped 3.1 percent from 2011 to 2013. Even by 2015, municipal court revenue had only dropped 7 percent, though the reductions in ticketing had been in place for several years.

One could hypothesize a number of explanations for that outcome, but it's hard to be sure from the information in the above sources. Maybe it means more money was extracted per arrest warrant even as the total warrants declined. Maybe it means the reduction in traffic tickets and warrants somehow caused more defendants to successfully complete their payment terms. Hard to tell from the information available, even if a cynic's suspicions might be raised. So make of that anomaly what you will.

One thing this does show us is that limiting municipal judges' ability to issue arrest warrants or empowering them to waive fees instead of issue warrants won't necessarily result in a big revenue hit. When arrest warrant totals declined over the last few years by steep margins, the resulting revenue drop empirically was (to me) surprisingly small.

Letting judges waive fines up front for indigent defendants makes sense

Grits was happy to see Rep. James White's HB 50, making a simple but needed change in Texas statutes surrounding indigency and payment of fines. Looking at the bill language, The East Texas Republican would allow JPs and municipal court judges to waive fines or substitute community service before defendants default  and have warrants issued, instead of afterward. Rep. Terry Canales, a Democrat, filed an identical bill styled HB 351.

This guest post from Ted Wood gives a good explication of the current state of the law surrounding these questions and the need for reform.

First Waco biker case headed to trial in January

The absurdist mockery of justice going on surrounding the Twin Peaks biker cases - in which  154 bikers were indicted on first-degree felony charges for conspiracy after nine were killed in a shootout  - continues unabated, below the radar screen of anybody but apparently Tommy Witherspoon at the Waco-Tribune Herald. The first defendant has now requested a trial and the case is set for January.
The request comes as the McLennan County District Attorney’s Office continues to provide hundreds of thousands, if not millions, of pages of discovery materials to the bikers’ defense attorneys, including copies of police reports, hundreds of hours of audio and video recordings of the incident and subsequent interviews with bikers, 700,000 pages of cellphone records, tens of thousands of photographs and Facebook posts.
Discovery had been repeatedly delayed but now:
defense attorneys involved in the Twin Peaks cases have been given five rounds of discovery from the DA’s office, which is required by statute to provide any and all evidence to the defense, regardless of whether the evidence points to guilt or innocence. 
The DA’s office recalled the sixth round of evidence last month after it was discovered some of the bikers’ cellphone images that were released contained child pornography.
County officials have been keeping the public in the dark about the expense of the prosecutions, but Witherspoon takes a stab at estimating the different components of the cost:
In the meantime, county officials are contemplating how to fund the huge expense of prosecuting all the cases. McLennan County Auditor Stan Chambers said the county has paid $62,026 so far in court-appointed attorneys’ fees. That total will multiply dramatically as the cases drag on and as the 70 to 80 court-appointed attorneys continue to review the mountain of discovery at $75 an hour for out-of-court time and $80 an hour for in-court time. 
As the first cases are tried in McLennan County, the potential remains for changes of venue for remaining defendants. Trying the cases away from Waco would double or triple the cost to the county, officials say. 
As more bikers go to trial, their attorneys likely will feel the need to hire experts in a number of subjects, including ballistics, crime scene analysis, DNA and others, which also will increase the costs to the county. 
And it has been suggested the DA’s office could upgrade the charges against a few of the bikers to capital murder and seek the death penalty in those cases. Capital murder cases are extremely expensive and include year after year of appeals if there are convictions.
The defense attorneys for the first guys up say that, despite hundreds of thousands of pages of discovery, they have yet to find any inculpatory evidence accusing their clients of crimes. Earlier a defense attorney speculated that no one may be successfully prosecuted since the actual shooters involved in the massacre were all killed by police snipers. So the overwhelming majority of defendants were simply witnesses at a crime scene, not perpetrators, a fact which raises the question: Why hasn't DA Abel Reyna dropped charges against un-involved parties long ago?

Friday, December 02, 2016

Complaint vs. magistrate judges over assembly-line #bail hearings

Senate Criminal Justice Committee Chairman John Whitmire filed complaints this week against three Harris County magistrate judges -  Eric Hagstette, Jill Wallace, and Joseph Licata III - after the Houston Chronicle published video of the assembly-line justice which has become routine in Texas' largest county. See his press release. Here's the video in question:


Reported the Chron's Lise Olsen:
The videos of hearings recorded in May right before the lawsuit was filed show that each case takes just minutes. Some get seconds. 
Almost no one wins pretrial release. Not the mentally ill. Not first-time offenders. Not people who dare to address the judges and request consideration because of poverty, jobs or parenting duties. 
Hearings are not attended by defense attorneys; typically just prosecutors and hearing officers are present. 
Activists argue that Harris County should provide both defense attorneys and alternatives at bond hearings for the mentally ill and for first-time or youthful offenders, and expand the use of personal bonds.
Two of the judges in these videos, Hagstette and Licata, weren't satisfied with denying defendants bond, they had to lord their authority over them. Licata increased a woman's bail because she answered "Yeah" instead of "yes." Pleas of special family circumstances or potential lost jobs fell on deaf ears. One defendant tried to explain why he should be released was told by the judge to save it for his defense attorney. Of course, the whole point of the lawsuit is that indigent defendants don't get a defense attorney at bail hearings, so the man had no one to represent him before the court to whom the judge would listen.

By all accounts, judges in Harris County are doubling down on litigation, throwing big bucks at private attorneys to defend these practices instead of reforming their probably unconstitutional bail system. It's hard to understand, after seeing these difficult-to-watch videos, what greater good or core values they think they're defending.

MORE: From the Houston Chronicle.

Thursday, December 01, 2016

Crappy criminal-justice reporting demonstrates journalism flaws exploited on national stage

“A lie ain’t a side of a story. It’s just a lie.”

                                                                  - Terry Hanning, The Wire

Since the presidential election, the national press has been struggling with the question of what to do when a politician is willing to tell outright lies and make assertions completely contrary to all available evidence. But the truth is, this was a problem long before Donald Trump threw his hat in the presidential ring. And the problem is perhaps worst in local coverage of criminal-justice topics.

Take, for example, this missive from the Bryan-College Station Eagle,  informing us that "the Brazos County Commissioners Court voted this week to approve hiring an additional state prosecutor to study how an extra attorney could help push cases through the criminal justice system."  The justification for the extra expense?
As the population of Brazos County continues to increase, law enforcement will have to continue to respond to an increase in local crime. Space will be set aside in the Brazos County Courthouse after renovations are complete for a fourth district court, to be used when needed. But [District Attorney Jarvis] Parsons said it's important not to go too big, too fast. Hiring more prosecutors could be an intermediary step, he said, one that leaves a much lighter financial footprint. 
"With an increase in populations comes an increase in crime," he said. "The last thing you want is be understaffed to deal with the massive amounts of people who have moved to this area and are going to move to this area."
Here's the problem with that analysis: Crime in Brazos County has gone down, not up, as the population increased. See crime stats for Brazos County for the last decade or so. Not only are rates (crimes per capita) down but also raw numbers for most crimes, and certainly the high-volume ones which occupy prosecutors' workaday duties. Brazos saw 549 burglaries in 2014 compared to a recent high of 1,207 in 2005. Thefts in 2014 were at 1,865, down from a high of 3,140 in 2004. There were 207 assaults in Bryan in 2014 compared to 550 in 2004.

So it's just false for Brazos County officials to pretend that a) crime is rising or b) that the amount of crime inherently rises with population. Neither are true. But the DA can make those claims confident that the reporter will merely quote what was said and not fact check it or hold him accountable.

This example helps explain why Americans believe crime is increasing when really it's falling. Reporters all over the country repeat this pattern every single day, quoting tuff-on-crime goverment voices from local police departments and DA's offices without fact checking their statements or seeking out contrary views. Local TV news, in particular, is rife with examples, but as with the Eagle reporter, print media are culpable, too.

This deferential methodology is precisely the flaw in American reporting that Donald Trump exploited to lie his way into the presidency. He'd make some ridiculous claim that 30 seconds of fact checking on Google would have refuted. But instead of evaluating the lie and either calling it out or declining to report it, reporters would avidly promote false statements as valid discourse. At most, they'd seek to "balance" lies with "the other side," almost always represented by a partisan voice whose motives could be discounted.

But a lie isn't "the other side" of the truth, it's just a lie. And reporters have become too habituated to letting them slide, allowing the he-said, she-said journalistic form to mask self-interested agendas. That defect in American journalism was made more glaring during the presidential election, but it by no means originated during this election cycle.

For an alternative approach, see here.

Wednesday, November 30, 2016

Gifts or Bribes? Prosecutor took donations from defendants who received leniency

This is a rather stunning story out of Brown County, and affirms why it was never a good idea to allow prosecutors to accept bribes gifts from people in their jurisdiction.
Most prosecutors in Texas are barred by state law from taking gifts from people in their jurisdiction. Among the ethical questions such arrangements could raise, the most basic is that a defendant could simply buy his way out of punishment for a crime. Yet for nearly a decade, the Brown County Attorney’s Office has arguably done something similar. [County Attorney Shane] Britton has made “donations” from defendants the foundation of a pretrial diversion program that lets people avoid prosecution for drunk driving, driving without a license, shoplifting and other misdemeanors. In this way, hundreds of defendants have paid a combined $250,000 since 2008 to cover travel to conferences, cellphones for Britton and his staff, and advertisements in the Brownwood High School cheer calendar, according to county records. By covering other office costs with donations, Britton was even able to convince county leaders to boost salaries for himself and his staff.
In Texas, paying for cops, courts and prosecutors with fees from defendants has gotten more and more popular over the years. But what happens when the drive to do justice on the cheap collides with a rogue prosecutor? 
Only in the last year has Britton’s office started to get critical attention from the county’s legal community. And in the tight-knit courthouse, it’s hard to miss the Texas Rangers collecting records regarding his office, or the rumors of an FBI investigation into whether donations were accepted off the books. When county leaders commissioned a forensic audit of the fund, they found huge gaps in record-keeping that suggested, at best, a casual approach to taking money from defendants. At worst, his critics allege, he ran an illegal collection scheme for over a decade that blurred the lines between fees, donations and bribes.
Read the whole thing, and kudos to Patrick Michels of the Texas Observer. He did a great job with this story.

Tuesday, November 29, 2016

Revisiting Grits' Ten Maxims for Relevant Journalism

As journalists across the nation engage in incessant navel gazing over how to reconstruct their profession's practices in response to replicable manipulation methods exposed by the presidential election, it's worth reminding folks of Grits "Ten Maxims for Making Journalism Relevant in the 21st Century." Looking back at that piece, now written nearly four years ago, they all still seem directly applicable, right down the line. Indeed, in the Trumpian era, the first and tenth maxims, in particular, should rule above all.

Sunday, November 27, 2016

DPS surge resulted in harassment of border-area drivers

Grits isn't sure at this point why journalists bother examining performance outcomes or cost-benefit analyses when it comes to immigration or border security. Somewhere during the 2016 presidential campaign cycle, debates on these subjects passed wholly through the looking glass and pols now feel free to just say stuff without any reference to facts or reality.

Regardless, the Dallas News gamely demonstrated yet again, if further evidence were really necessary, that Texas' much-ballyhooed border security buildup has been a public safety bust. During the period after the DPS surge began, traffic tickets in areas with expanded patrols increased slightly. But the big change came in traffic stops resulting in warnings, which skyrocketed more than five-fold almost immediately.

That means DPS is stopping a lot more people but in most cases there isn't enough criminality present even to justify giving them a ticket. So tens of thousands of South Texans were being subjected to unjustified pretext stops which are basically fishing expeditions, not detentions based on legitimate public safety needs. Justifiably, reported the Morning News:
some critics continue to charge that DPS remains unable to prove real success at the border beyond boosting traffic enforcement. 
“For that level of scrutiny on your driving habits, what are we getting?” said Rep. Poncho Nevarez, an Eagle Pass Democrat who serves as vice chairman of the House Homeland Security and Public Safety Committee.
Moreover, both citations and warnings dropped steeply across the rest of the state as DPS diverted resources to staff up the border surge, found the paper's analysis. "Comparing the two years after the surge against the two years before, citations spiked 30 percent and warnings rose 160 percent in Starr and Hidalgo counties. In nonborder counties, meanwhile, citations dropped 21 percent and warnings fell 25 percent."

Some individuals were subjected to a level of intervention which can only be described as harassment. Almost unbelievably, "Looking at the 22 months after the surge began, The News found more than 600 people in Starr and Hidalgo counties who were stopped at least 10 times. More than 300 were stopped at least 20 times. One person was pulled over 52 times in that time period."

With the new president pledging to begin construction of his "beautiful" new wall on "day one," we're already hearing open discussion among Texas Republicans of ending DPS' border deployment and letting the feds handle the job. Even though that's clearly a self-justifying fig leaf, IMO legislative critics should let them have this one, take "yes" for an answer, and seek to end the $800-million-per-biennium pork package, freeing up the money to use for other priorities.

State leadership isn't going to end this wasteful boondoggle because it's failing to achieve good outcomes or doesn't make cost-benefit sense. That ship long ago sailed. We must recognize that this budget item originated as a partisan slap at the Obama Administration, not in response to real-world public-safety threats. So, having been spawned of overt partisanship, that's probably the only basis on which the DPS surge can realistically be rolled back while giving state leadership sufficient political cover. I'd be fine with that.

Saturday, November 26, 2016

Convenience vs. the Constitution: CCA habeas procedures value former over latter, says high-court judge

Thanksgiving is over, but Grits is grateful for Texas Court of Criminal Appeals Judge Elsa Alcala, without whom I wouldn't have been aware of this major problem with the court's habeas corpus procedures.

In an opinion released this week, Alcala pulled back the curtain on the court's internal policies to reveal how most habeas writs are decided by a single judge, in her opinion in contradiction to requirements in Texas' Constitution and statutes. This is a must-read opinion for anyone interested in Texas habeas corpus matters.

Basically, the CCA has identified entire classes of cases which are segmented out by staff and routinely denied by a single judge. Alcala agreed the writ in this case should be denied, but filed this concurrence to expose problems with the process.

In Alcala's view, "the Texas Constitution requires a decision by a quorum of judges on this Court, and thus a denial of habeas relief by a single judge on this Court fails to comply with this requirement." She believes that, "the Texas Constitution’s mandate that a quorum of judges decide this Court’s cases is not satisfied by what is effectively a standing order of this Court that permits an individual judge to act as a proxy for a quorum of the judges on this Court on the basis of a pre-vote on a category of cases that are never actually individually seen by any judge other than the proxy judge."

In non-death penalty cases, she points out, the Texas Constitution (Art. V, Sec. 4) permits a panel of three CCA judges to consider habeas writs, but not individual judges as is this court's practice. In a panel of three, two judges constitute a quorum. So by that reckoning, at least two judges must participate for these writ denials to be valid.

The Texas Constitution does give individual members of the CCA power to issue habeas writs, she argues, but not to deny them. And in any event, the court's authority "is subject to regulation by the Legislature, which has decided not to permit the exercise of that power for Article 11.07 writs," which is most of them. Those writs are issued through the convicting court and the CCA's statutory role only begins after that court does its work.

The issue is important because there are three, maybe four CCA judges who reflexively side with the government in all cases. These judges can be counted on to reject defense arguments not so much because they're wrong, but simply because they come from the defense, whom they like to blame even for problems that prosecutors cause. So any writ that goes to Sharon Keller, Barbara Hervey, Michael Keasler, and in non-death cases, probably Kevin Yeary, are apt to get rejected and round-filed no matter what the situation. The court remains sharply divided and the difference between how different judges might view cases is substantial.

In that light, requiring at least two out of three judges on a panel to consider a case provides at least some check on members of what Grits has dubbed the Government-Always-Wins faction on the court, which includes the Presiding Judge who assigns cases. If the answer to a habeas petition is just that "Michael Keasler said 'no'," it's hard to assess whether that's because the petition itself was inadequate, or just because certain judges walk into most cases having settled on a predetermined, pro-government outcome.

IANAL, so I'm not sure what recourse there is when a majority of high-court judges choose to disregard the law for their own convenience. (Maybe such things can get appealed to SCOTUS? Some more knowledgeable person, please enlighten us in the comments.) But Judge Alcala deserves thanks for making public an internal, procedural practice that violates the constitution and limits the application of justice. If she didn't say something, how could we know?

CLARIFICATION: The original post implied individual CCA judges could "grant" habeas writs when Alcala's opinion made clear they may only "issue" them, ordering a defendant to appear before a trial-court judge. In her view, individual CCA judges are not authorized to grant or deny 11.07 habeas writs under their own authority. Read Alcala's opinion for a more complete explication of these issues. Grits regrets any confusion.

Friday, November 25, 2016

Black Friday #cjreform reading list

Grits plans to spend some of the weekend catching up on my reading, and thought I'd share links to a few recent academic articles I'm hoping to get to in the coming days:

"The Constitution of Police Violence": "[T]he same legal framework that authorizes and normalizes the ordinary traffic stop also permits and even encourages killings of unarmed suspects."

"Out of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution, and Constitutional Limitations": If fines and fees "serve a primary or even exclusive revenue raising function," should they be classified "as emanating from exercise of the taxing rather than the policing power of the municipality"? The article focuses on Missouri, where anti-tax ballot initiative by voters helped spur reliance on fines and fees for revenue.

"Consolidating Local Criminal Justice: Should Prosecutors Run the Jails?": Would making prosecutors responsible for jail costs limit incentives to overuse incarceration for misdemeanors? One occasionally hears pie-in-the-sky suggestions that counties should pay for incarceration in state prisons for offenders convicted in their jurisdictions so that prosecutors have skin in the game when seeking harsh, expensive punishments. This article usefully extends that analysis to the misdemeanor level, where such a transformation might be easier to implement.

"Imagining Perfect Surveillance": A fascinating (and somewhat optimistic) thought experiment about what future "perfect surveillance" might look like and how it might affect the justice system.

"Immigrant Protective Policies in Criminal Justice": In the wake of Trumpian calls for deporting immigrants with criminal records, this article's suggestion for an "equality" based message and approach holds promise as a means for "formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities."

"Body-Mounted Police Cameras: A Primer on Police Accountability vs. Privacy": Might privacy concerns over police body cameras make them a detriment to community policing? And as exceptions are made to whom and when police record, might accountability benefits decrease? These and other emerging, unresolved issues about body-camera tech are outlined in this short paper.

"From Policing to Parole: Reconfiguring American Criminal Justice": "Evidence-based means exist to make major improvements in every facet of American criminal justice. What has been lacking is the political will to use them."

Thursday, November 24, 2016

CCA plurality: 11th-hour evidence disclosure insufficient to comply with Brady

David Temple may be the most thankful Texan in the state today.

This week the Texas Court of Criminal Appeals overturned the conviction of the former football coach from Katy whom a jury found guilty of killing his wife in a high-profile Harris County case. (See coverage from the Houston Chronicle, Houston Press, and KHOU.) Visiting Judge Larry Gist had found prosecutor Kelly Siegler - perhaps the Harris County DA office's most famous progeny who now stars in a Dick-Wolf-produced TV show - withheld exculpatory evidence. She failed to turn over 1,400 pages of police reports until midway during the trial, giving the defense no time to investigate or use much of the information.

At the habeas hearing, Siegler testified before Judge Gist that she had no obligation to turn over potentially exculpatory evidence if she did not herself believe it was true. That "misconception" is what convinced three members of the court to sign on to a plurality opinion by Richardson granting a new trial  (Judge Newell, who until recently worked for the Harris DA appellate division, did not participate in the case.) 

Kevin Yeary provided the fifth vote for a new trial with a rather odd and IMO pointless concurrence. He would not have found Brady violations but instead grant relief based on ineffective assistance of counsel, with the ineffectiveness in question being that they could not adequately use information from the 1,400 pages because they were handed over so late. In other words, Yeary agrees the defendant got screwed but prefers to blame defense counsel for the prosecution's delayed disclosure. It's opinions like this one that make me think Yeary is moving quickly toward the Government Always Wins faction, though, as in this case, he still has one foot planted outside that tent.. That was a ton of work to craft an opinion whose sole purpose was not to change the result but to pretend that Kelly Siegler did not improperly withhold exculpatory evidence, when clearly she did so.

The other three judges in the Government Always Wins faction - Keller, Hervey, and Keasler - dissented but did not explain why. That's become somewhat common when they lose, but IMO an unexplained dissent here doesn't pass the smell test. If you think the result was wrong, explain why. Grits' sense is that, in cases like this, they don't explain their thought process because to do so would expose (barely) hidden motivations. It's difficult to disagree with Judge Richardson's reasoning that the extraordinary delay in disclosure prevented the defendant from getting a fair trial. Even Judge Yeary agrees that defense counsel couldn't adequately make use of the police reports so late in the process.

But although these three GAW-faction judges clearly believe convictions obtained in this fashion should be upheld, explaining why and how would open them to ridicule and condemnation in the legal community. They would be justifying Brady violations that cannot be viably defended on legal grounds. Instead, it looks to me like the three GAW judges are heeding some of my father's favorite advice, "It's better to remain silent and be thought a fool than to speak up and remove all doubt." And because media coverage of the court is so sparse and poor, they pretty much always get away with this sort of one-sided pro-government gamesmanship.

Wednesday, November 23, 2016

Obama finally ramped up on clemency in second term, but not nearly enough

As President Obama's total sentence commutations surges past 1,000, it's worth remembering two things. First, just four years ago, his clemency record was so poor that Pete Ruckman at Pardon Power and your correspondent launched a campaign urging him to pardon deceased writer O. Henry to highlight his stinginess on pardons, which were then at near-historic lows under his presidency. Though the application was denied long ago, Ruckman is still carrying that banner!

Second, as evidenced by this graphic produced by Prof. Ruckman, the president's application of executive clemency has been puny and reticent compared to the reality of federal overincarceration:


In that light, not so much to get excited about, huh? Mark Osler, formerly a law prof at Baylor, now at the University of St. Thomas, had an op ed this week urging the President to ramp up his end-of-term clemency to historic levels. And as Pete Ruckman reminded the president as he oversaw his final turkey pardoning, it still wouldn't hurt him to pardon O. Henry.

MORE: From Ruckman on Obama's clemency legacy.

San Antonio Four declared actually innocent!

Congrats to the San Antonio Four and their attorneys on the women's exoneration and findings of actual innocence from the Texas Court of Criminal Appeals. See coverage from the SA Express-News, the majority opinion by Judge David Newell and a concurrence from Elsa Alcala. The decision clears the way for the four women to be compensated for their wrongful imprisonment.

Judges Keller and Keasler did not agree with the actual innocence claim but would have granted relief under Texas' junk science writ, while Hervey and Yeary did not participate in the decision.

Thursday, November 17, 2016

Bodycams and transparency: Houston PD edition

Just got an email from the good folks at KHOU. It read in part:
In an era of smartphones and social media, body cameras have become increasingly prevalent in police departments nationwide. Our five-person investigative team, based out of Houston, is part of TEGNA and KHOU. TEGNA has a new initiative in two of its stations to take a group of journalists “off the grid” and allow them to work on a project until it’s complete. On Sunday, our team launched our first project and we are hoping you will share our investigation with the readers of Grits For Breakfast. We researched more than 60 police departments nationwide to get information on their body-camera programs. 
Here’s a bit more information:

Body cameras are touted as tools to help on both sides of the lens: for the police and the citizens. To date, nearly 4,000 departments have implemented a body-camera program. The focus of our investigation is the Houston Police Department’s $8 million body-camera program, touted as the blueprint to transparency and accountability. 
But a four-month investigation by KHOU-TV, the CBS affiliate in Houston, found that the body-camera program is falling short of its promise. In a four-part docu-series called Transparency, KHOU investigates HPD’s implementation of the program.
The major findings were:
  • HPD promised to conduct monthly audits of videos to check that officers are recording when it counts. We found that one random audit was conducted in six months.
  • The Harris County District Attorney’s Office is missing videos in more than 700 cases. Houston’s interim police chief did not dispute this, but said they are investigating the issue.
  • HPD delivered videos in 132 cases to the DA for use in court after the cases were already closed.
  • Although the vendor that provides HPD’s cameras offers a safety net that ensures that footage will not be missed (free of charge), HPD chose not to activate that function.
You can see the full investigation at bodycamtransparency.com.

On the failures of Texas' eyewitness ID reform, when innocent people plead guilty, pondering immigration policy, and other stories

Here are a few odds and ends to clear Grits' browser tabs of brief items which merit readers' attention:

Report confronts sexual assault in Texas prisons
Grits will have more on this soon, but for now here's the link to a new report from the Texas Association Against Sexual Assault and the Prison Justice League on sexual assaults in Texas prisons - one of the first in-depth looks at the issue since Texas agreed to comply with the federal Prison Rape Elimination Act. MORE: See coverage from the Houston Press and the San Antonio Current.

TX eyewitness reform didn't stop suggestive IDs, photo arrays
In a recent dissent, Judge Elsa Alcala effectively showed why and how Texas' eyewitness identification reforms have failed to stop convictions based on biased lineups, in this case where the suspect was the "sole one in the photo array matching the physical description of the shooter." See the majority opinion, which mostly relied on outdated criteria from older cases that predated modern best practices in this area.

Concerns over cell-phone location data legitimate, non-partisan
In Texas, lots of folks were concerned about privacy of cell-phone location data long before the recent presidential election, including loads of conservatives. So I hate to see the push for federal cell-phone privacy legislation cast in terms of fear of Donald Trump. Grits wasn't any more happy when it was the Obama Administration pushing to maximize government surveillance powers.

When innocent people plead guilty
Reported AP, "Last year, 68 out of 157 exonerations [nationwide] were cases in which the defendant pleaded guilty, more than any previous year. That's 43.3 percent, for those keeping score at home.

'Detached from reality' Crime and public perception
Following up on their own poll, discussed here on Grits, the Pew Research Center explored why "Voters perceptions of crime continue to conflict with reality." Gallup over the years has continuously found that voters perception of high crime is "detached from reality." At Vox, German Lopez has explored this odd and persistent phenomenon. The Brennan Center has found that headline mentions of murders in newspapers did not decline along with the volume of murders themselves. In this election we saw that misperception brazenly exploited by the President-elect, who went around claiming violent crime was at a 45 year high when the opposite was true. By the time he trotted that one out, he had told so many flat-out fabrications that the media''s fact checking seemed tired and pro forma, as do hubristic pretensions that media will now solve misconceptions they've actively created.

Okie Governor leading by example on criminal-justice reform
Read Oklahoma Governor Mary Fallin on the recent election and criminal justice reform. She's saying the sort of things while in office that Texas Gov. Rick Perry waited to embrace until after his departure. Voters in her state just overwhelmingly voted to reduce penalties for low-level drug possession from a felony to a misdemeanor. The Lone Star State should follow suit, or Oklahoma may soon supersede the Texas GOP when it comes to Right on Crime bona fides.

Pondering immigration, walls, symbols, and public opinion
Here's the problem with the Trumpian plan to deport "criminal" immigrants: After years of the Obama Administration aggressively enforcing their "Secure Communities" program - a ham-handed operation which never worked well and of which Grits was never a great fan - there aren't nearly 2-3 million of those left to deport. (Immigrants commit crimes at much lower rates than citizens. Foreign nationals account for 16 percent of Texas' population, for example, but only eight percent of arrests.)

Will "I'll do what Obama did," plus spending $10-20 billion (or whatever figure) on an American Great Wall, be enough to satisfy voters spurred to the polls by anger over Latin American immigration? Perhaps rebranding the policy as Republican will allow pols to declare victory and stop fighting, the way Texas Rs seem ready to declare victory on border security and spend the money on something else. The campaign is over now and governing requires confronting reality. Grab some popcorn and stay tuned.

In Texas, that reality includes the fact that undocumented immigrants make up more than eight percent of our active labor force. When push came to shove, while some Texas Rs have indulged in nativist rhetoric during campaigns, most have always understood and respected core interests of the business community when governing. At first blush, that seems to be the approach the president-elect will take: Talk big, wait for public discord to die down, then declare victory without really having changed anything and move on. While essentially frivolous as a border security suggestion, perhaps a "Great Wall" will serve a more important purpose as a tangible, lasting symbol. Who knows? Maybe that's what's necessary to sell Obama's immigration policy as a Republican solution that the president-elect's still angry base will accept.

Wednesday, November 16, 2016

On debtors prison policies as job security for government bureaucrats

Not all judges view poor defendants who can't pay fines for petty offenses as a source of "job security," but neither is the attitude uncommon, nor in the present political environment, disqualifying. The Houston Press' Meagan Flynn has the story of Houston magistrate Judge Joe Licata, In a recent case involving a woman with high Driver Responsibility surcharges:
Licata warned her that, if she didn’t pay the fines for these tickets and renew her license after paying surcharges to the Department of Public Safety, “then you’re gonna get arrested every time you get pulled over.” 
That was nothing to her, Clearey responded — because she had already become trapped in a cycle of arrests. 
“It’s nothing to me either,” Licata told her. “It’s job security.”
Tis as true as it is horrifying that he would view it through that lens.

The Texas Organizing Project has produced a video with examples of problematic statements by Licata from the bench.