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Preview: Grits for Breakfast

Grits for Breakfast

Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Updated: 2018-04-21T15:39:27.295-05:00


Newsflash: "Touch DNA" doesn't necessarily require touching


Grits has discussed problems with DNA mixture evidence - particularly regarding so-called "touch DNA" - at some length. But conversations in Texas about the math have ignored an even bigger problem raised in this Wired magazine article: Touch DNA from an individual can be transferred to places to which the suspect has never been. 

The featured case involved an innocent man whose DNA wound up under the fingernails of a murder victim. But the crime was committed while he was hospitalized and could not have committed the offense. It turned out, the same paramedics treated the suspect and responded to the murder scene, somehow transferring his DNA in the process.

This may be more common than anyone - even innocence advocates - have understood. It turns out, for example, about one in five people "walk around with traces of other people's DNA on our fingernails," a study found

Or consider: Scientists have determined that a man who shakes hands with another person then goes to the restroom may end up with their DNA on his penis. Or, according to this Canadian study, a father's DNA may frequently wind up on his daughter's underwear because it "migrates there in the wash." (One wonders how often that latter circumstance may have contributed to false convictions in child molestation cases?)

The emerging questions around touch DNA - both the math surrounding the analysis and the assumptions surrounding what the results mean - are a lot more complex than anyone could have imagined five or ten years ago. Unfortunately, the criminal-court judges charged with sorting out the mess are ill-equipped and unprepared to do so.

Indeed, if these questions are resolved a decade from now, Grits will be pleasantly but seriously surprised. The Trump Administration shut down forensic reform efforts soon after Jeff Sessions became Attorney General, and it's doubtful state-level activities like the review at the Texas Forensic Science Commission can forge national or (really) international standards, which is what's ultimately needed.

On increasing prosecutor caseloads in an era of crime decline


On Twitter, TDCAA complained about Grits' observation in this post that, as the number of crimes with victims declined over recent years, police and prosecutors have shifted their focus to areas where they may maintain or even increase caseloads despite more than two decades of dropping crime.

The association is right that caseloads have increased. Grits has discussed before how the number of criminal convictions statewide continued to rise long after crime and arrests began to drop. In his book, Locked In, John Pfaff demonstrated the same trend occurred nationwide from the mid-90s to the late aughts, with the number of felony-charges-per-arrest over that period rising from one-in-three to two-in-three. So, even as crime and arrests declined, the number of convictions continued to rise.

On the ground, Grits sees this trend playing out as law enforcement shifting resources to activities that aren't particularly public-safety oriented and which certainly aren't responding to people's victimization.

For example, the Ector County Attorney authored a blog post in February detailing his 2017 caseload. (County Attorneys in Texas prosecute all misdemeanor cases.) The top two offenses prosecuted by his office were marijuana possession (19% of cases) and Driving With Invalid License (17%). At 16% of the caseload, DWI enforcement came in third.

I don't want to pick on Mr. Gallivan because his numbers are pretty typical - he just happened to have put his caseload data out there. But 36 percent of his office's caseload is either prosecuting people for paperwork violations (DWLI is about license status, not safety), or churning through low-level arrests for a nonviolent activity (user-level pot possession) which would be legal in nine states and the nation's capitol. (In related news: A Quinnipac poll out this week found that nearly 2/3 of Texas voters support legalizing recreational pot possession.)

These are the big growth areas in prosecutor caseloads. Similarly in the Travis County data that originally inspired the prosecutors' complaint, possession-level drug arrests accounted for nearly all of the increase in caseload; otherwise, jail bookings had gone down.

So when crimes with victims diminish, these sorts of evergreen offenses are where the system shifts its focus.

None of this is raised to blame prosecutors - the Legislature creates and defines crimes, not them, and often they are reacting to whom police choose to arrest. Rather, my point is to raise the question: Is that what we want the justice system to be doing? When crime goes down, is it a good use of resources to criminalize paperwork violations or prosecute pot smokers to justify high staffing levels? Would taxpayers be better off if Mr. Gallivan prosecuted all those DWLI and pot cases, or if he eliminated 36 percent of his staff and provided voters with tax relief (with additional relief coming from lower jail and court costs, etc.)?

These seldom-discussed questions are worth asking, even if the prosecutors' association takes offense. They're not the only ones to blame for a distorted and dysfunctional system, but right-sizing it will require significant changes to how they perceive and perform their duties.

Appointed counsel in Austin radically increases chance of conviction on drug charges; police pursuing victimless drug cases as crime declines


Defendants in Travis County were far more likely to be convicted of state-jail felony drug charges if they were indigent with an appointed attorney compared to those who hired their own lawyers, according to a KXAN-TV report based on a new Council of State Governments analysis. And police are making more arrests for low-level drug possession, even as jail bookings for all other offenses have declined. (Your correspondent was briefly quoted in the KXAN story.)Perhaps the most disturbing finding was the effect an appointed lawyer had on case outcomes: The report found that, "80 percent of people in the past five years were found guilty on drug charges if they used a court-appointed attorney. If they paid for their own attorney, only 48 percent were found guilty on drug charges."These are similarly situated defendants demonstrating radically different outcomes based on how (and how much) their lawyers are paid. Certainly, it's a bad look for the "managed assigned counsel" program in Travis County. Grits believes we'd see much better outcomes from a full-time public defender office. In Harris County, for example, the public defender office "achieved a greater proportion of dismissals, deferred sentences, and acquittals, and a smaller proportion of 'guilty' outcomes, than assigned counsel. HCPD secured acquittals on all charges at three times the rate of appointed and retained counsel."The Travis County data demonstrate how failure to invest in one part of the system can create even greater costs for taxpayers down the line. By underpaying attorneys who then do not adequately vet cases, more people (2/3 more) are convicted, which then leads to extra costs for incarceration in state jail or supervision on probation. For that matter, some percentage of those sentenced to probation will also be revoked and eventually incarcerated, too.The upshot: if indigent drug defendants in Austin received a comparable quality of defense as people who hire private lawyers, it would reduce incarceration costs significantly down the line.In addition, the report cast light on the disturbing trend of law enforcement focusing on victimless drug-possession cases as crime overall declines. From the CSG report:Bookings in Travis County for arrestees with SJF increased while overall bookings declinedOverall jail bookings in Travis County decreased by 14% between 2013 and 2017, but bookings of arrestees with SJF increased by 9%SFJ-DP [drug possession] bookings increased by 34%Why would drug arrests increase during a period when crime and jail bookings overall declined?My theory: Crime may have declined but the number of police officers and prosecutors stayed the same or increased over the same period, and those people need something to do with their days. At the same time, there are FAR more people using drugs than are routinely arrested, so there is a deep pool of petty, low-risk offenders into which law enforcement may cast its nets. And even if they're only catching "little fish" - state jail felony drug cases involve less than a gram of a controlled substance - at least they're going through the motions of making arrests and enforcing the law. Essentially, this is rent seeking behavior on the part of law enforcement.Together, this rent seeking activity, combined with institutionalized incentives for poor-quality lawyering among appointed counsel in Travis County, prioritize the interests of players in the system over both defendants' constitutional rights and systemic equity. Thus it's understandable why things would be this bad, just not acceptable.[...]

An undocumented necropolis at the (former) Central Unit, TX Supreme Court Chief Justice inspired by the Ferguson report, and other stories


Here are a few odds and ends that merit Grits' readers attention:Galveston sued over bail scheduleACLU has sued Galveston County over its bail schedule, adding that county to Harris and Dallas as bail litigation sites. If your county still operates under a bail schedule, they'll soon have to change. Better to do it now before you're successfully sued. Ask the judges in Harris County.Central Unit property an undocumented necropolisHere's a postscript to the closure of TDCJ's Central Unit in Sugar Land, which long-time readers will recall was the first prison unit closed in the Lone Star State since the founding of the (Texan) Republic. When Fort Bend ISD began preparing a portion of the sight for a construction project, they began unearthing bodies. Lots of them - 22 as of when this Houston Chronicle story was written. These were inmates from the convict leasing era and later who worked for the Imperial Sugar Company as de facto slave labor through the early part of the 20th century. A cemetery on the prison site included only white inmates' remains, which led activist Reginald Moore to believe that black prisoners were buried in unmarked sites elsewhere on the grounds. Turns out, he was right. See related, earlier coverage from Texas Monthly and commentary from Grits. MORE: The number of unmarked graves discovered is now 79!TX courts limit pretext stop searchesFollowing a reversal by the Texas Court of Criminal Appeals, the First Court of Appeals issued a ruling limiting the scope of searches incident to arrest. The First Court ruling limits law enforcement's authority to arrest drivers for Class C misdemeanors as a pretext for searching their car.  The case involved a driver arrested for failure to signal a lane change. Police found drugs in his car trunk, but the courts have now ruled they had no reason to search there: "What police officers may not do, even when they conduct a search incident to a lawful custodial arrest of a recent occupant of a vehicle, is to search the vehicle when the arrestee is secured and not within reaching distance of the passenger compartment," according to the new opinion. See coverage from and all the relevant court documents.Looks like pot to me!A Harris County crime lab employee was fired for drylabbing marijuana samples.Is fast track a death-trap for innocents?Check out an innocence-based argument against Texas' petition to fast-track death-penalty appeals. Anthony Graves has rightly pointed out that he would have been executed before he ever could have been exonerated under the new rules.Ferguson report inspired TX debtors-prison pushMarc Levin of the Texas Public Policy Foundation interviewed Texas Supreme Court Justice Nathan Hecht about his decision to champion debtors-prison and bail reform issues. See also a related blog post. Hecht was introduced to the debtors prison issue thanks to the USDOJ's report on overreliance on fine revenue out of Ferguson, Missouri, he told Levin.Murder-insurance program notches LWOP verdictThe Regional Capital Public Defenders Office, which provides representation in capital cases for counties that participate in its so-called "murder insurance" program, won a life-without-parole verdict recently in a case involving the murder of a San Antonio Police officer - the first such trial verdict in their ten-year history.SAPD to county: We hate your new jail intake facilityGrits doesn't know enough yet to tell who is right about the dispute between San Antonio PD and the Bexar County commissioners court over whether SAPD should use the new intake center built at the jail. But my gut leans toward the county: the redundancy makes little sense for taxpayers, and Chief McManus sounds like he's more worried about the officers' convenience than enacting best practices at the jail.Ombudsman report tallies inmate complaintsCheck out the TDCJ Ombudsman report for 2017. Visitation remains the perennial main source of complaints [...]

Assessing Harris County bail litigation as it nears denouement


In last month's Reasonably Suspicious podcast, I interviewed Susanne Pringle, executive director of the Texas Fair Defense Project, about the denouement of the Harris County bail litigation, in which her organization was one of the plaintiffs. Since we spoke, Galveston County was sued by the ACLU over essentially similar grounds, and Dallas County already faced litigation over its bail system, so the Harris County domino falling may soon take down quite a few other county's pretrial detention regimens.When Judge Lee Rosenthal issues her revised injunction in light of the 5th Circuit's ruling, in many ways it will be like firing off a starting gun. That document will set the parameters for bail systems throughout Texas, establishing a minimum floor for constitutionality. Any county continuing with a bail schedule or violating other shall-not portions of the injunction will find itself low-hanging fruit for a similar suit. So expect a lot of local-level activity on this front over the coming year, and probably a legislative reaction in 2019.Here's the excerpt including the interview with Pringle: allowfullscreen="" frameborder="0" height="30" mozallowfullscreen="true" src="" webkitallowfullscreen="true" width="500">Find a transcript below the jump.Mandy Marzullo: In February the Fifth Circuit Court of Appeals handed down a ruling which upheld Judge Lee Rosenthal's finding that Harris County's bail and pretrial detention practices were unconstitutional. They also upheld most of the remedies Judge Rosenthal had required with one major exception. The court increased the amount of time defendants can be held without setting bond from 24 to 48 hours under Judge Rosenthal's ruling.Mandy Marzullo: Scott caught up recently with Susanne Pringle from the Texas Fair Defense Project, which initiated the Harris County lawsuit along with civil rights court in Susman Godfrey, a private Houston-based firm. Before Scott and I discuss the case, let's listen to what she has to say.Scott Henson: All right Susanne, tell us what happened in the litigation. Who won? Who lost and describe the outcome for us.Susanne Pringle: At this point the Fifth Circuit recently largely upheld the district court ruling, which was that the Harris County bail system as it stood was unconstitutional. The Fifth Circuit did say that they wanted the district court to issue an injunction that allows for 48 hours before release as opposed to 24 hours and that the injunction was perhaps wider than it should have been.Susanne Pringle: At this point the injunction is still in place until the district court can issue a revised injunction. In the meantime, both sides have filed motions for rehearing. The plaintiff's on a very minor issue, which is that the other loss is that the Fifth Circuit did dismiss the sheriff, the Harris County Sheriff as a defendant. Now the Harris County Sheriff had actually not appealed the lower court's ruling and so was not actually at issue in the case, but while all of that is going on and while the 5th Circuit is deciding what they're going to do, the injunction that the district court issued is still in place.Scott Henson: What is Harris County doing on the ground now in reaction to this?Susanne Pringle: Since July of last year there have been lawyers at every bail hearing. They are doing individualized hearings in Harris County and if they are unable to get someone in front of a magistrate for a hearing, they have to release them within 24 hours. That is not true for a few types of cases like domestic violence cases or other situations where it may be appropriate to hold someone for longer, but they're releasing people on bonds that they can afford. They're actually asking, magistrates are actually asking questions about what a defendant can afford and they're actually reviewing what the lawyer tells them about what someone can afford.Scott Henson: So Harris is no[...]

Populist backlash snuffs Pflugerville Tuff-on-Crime resolution


A majority of the Pflugerville City Council were listed as co-sponsors of a resolution this week declaring that violent crime was on the rise and calling for prosecutors and the courts to seek maximum penalties in all cases for both violent offenders and drug possession. In the 1990s, one saw these regularly from all levels of government, with officials who had no formal role in the justice system trying to jump on the Tuff-on-Crime bandwagon.

This time, though, the grandstanding maneuver back-fired.

Measure-Austin, a local police accountability group, put out the word among Pflugerville residents that their city council was about to do something regressive and foolish. And Just Liberty created a local email action alert that generated 74 constituent letters to the mayor. Community members showed up to oppose it and won a 5-0 vote against the resolution, which started with 3 of 5 council members as sponsors!

According to video posted on Twitter, one of the sponsoring council members moved to postpone the item indefinitely, to which the Mayor replied that he'd feel more comfortable if they postponed the item "eternal." The motion author accepted the amendment, and that's the motion that passed.

Grits finds this episode particularly notable and encouraging. As mentioned, not so long ago, these sort of grandstanding Tuff-on-Crime resolutions were as common as stink on a pig and played quite well with their intended audience, very much across party lines. These days, public support for such regressive stances has dissipated and a more motivated, militant, and bipartisan opposition to mass incarceration appears to be emerging.

Indeed, it's hard to describe for anyone younger than about 35 how radically different this episode was than the situation that faced us when your correspondent entered this work in the mid-'90s. Like night and day.

Myths and dilemmas surrounding DNA testing backlogs


The Fair Punishment Project has a good roundup in its In Justice Today Texas newsletter of stories on Texas' efforts to reduce the so-called "rape kit backlog," and I was pleased to see among them this item identifying "5 myths" surrounding the controversy over un-tested rape kits from the co-founders of People for Enforcement of Rape Laws.I agree with most of that commentary, but there's one other "myth" they didn't cover: That every un-tested rape kit has the potential to identify a criminal. Many times, the reason rape kits go un-tested is that the identity of the alleged assailant isn't the issue. Rather, the issue is whether a sexual act was consensual, and the existence of DNA doesn't prove culpability.For more context, check out the lab director from the Los Angeles Sheriff's Office discussing the cost-benefit issues surrounding testing of rape-kit backlogs at a National Institute of Justice event in 2010. They spent $1.7 million to analyze their rape-kit backlog to find just two viable suspects.In Houston, by contrast, they found many more un-solved cases when old rape kits were tested. IMO that's because HPD was doing a much poorer job of investigating sexual assaults than the Los Angeles Sheriff. This speaks to one of the main critiques of the authors of the "5 myths" article:The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases. Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed.That's a fair analysis, but it doesn't apply to every agency. The examples of HPD and the LA County Sheriff illuminate how widely that can vary from department to department. Not every agency suffers from a culture of neglected rape complaints, but when it happens, it compounds tragedy in bunches.At one point, the National Institute of Justice had issued a grant to Houston PD (also Detroit) to develop protocols regarding when it was and wasn't appropriate to perform DNA testing on rape kits. There is a detailed website illuminating all sorts of interesting aspects about this project, but Grits has still never seen any final recommendation regarding exactly under what circumstances law enforcement should choose not to have a rape kit processed at the crime lab. (If I've just missed them, please, somebody point them out; once my job ended as the Innocence Project of Texas policy director, I stopped tracking these topics closely.)Grits mentions this not to discourage testing of rape kits, nor to make excuses for those in the past who allowed rape cases to languish un-investigated. But because there are, in fact, viable circumstances under which the expense of rape-kit testing isn't justified - particularly in cases where the principle issue is consent, not identity - until such protocols are promulgated, law enforcement will continue to make decisions about whether to test rape kits on a case by case basis.Better to just[...]

Texas' juvie decarceration provides example for adult side


This graphic from a recent Dallas News story (4/6) says nearly all you need to know about juvenile corrections in Texas over the last four decades:

The main thing to add is that juvenile crime increased during most of the period the curve went up and was (and is) decreasing on the downward side of the slope. For the most part, high incarceration levels have demonstrated little correlation with crime, with juvenile crime reducing drastically during the period the state decarcerated its youth prisons.

Juvie decarceration in Texas is arguably the most important accomplishment of the "Right on Crime" era among Lone-Star Republicans, even if the job remains unfinished. Texas launched its juvenile decarceration scheme just four years after the GOP took over the Texas Legislature for the first time since Reconstruction, and has now been sustained through successive governors, with reductions now accelerating again under Gov. Abbott.

Texas has proven the concept on the juvie side. Now the task is to convince those same leaders to apply the same lessons to the adult system, where our prison population remains the highest in the nation and the prison system releases some 70,000 people per year. Many of those people would be less likely to recidivate if they'd never been sent to prison at all!

Some days, your correspondent despairs that Texas' behemoth of a prison system can ever be successfully dismantled. This example provides hope. If juvie prisons can reduce their populations by three quarters and the public barely noticed, maybe state leaders will see that there's little political risk and a lot to gain by reining in a sprawling and outdated adult system. Indeed, as on the juvie side, adult decarceration should seen as something for which politicians can take credit, with failure to embrace it garnering blame.

On indigent defense and 'unfunded mandates'


Grits is broadly sympathetic to the much-ballyhooed claim (championed most prominently by the Texas Association of Counties) that Texas state government unfairly cost shifts to county and municipal governments via "unfunded mandates." But critics of unfunded mandates are wrong to include indigent defense in the "unfunded mandate" critique and are only doing so by ignoring the real and much more costly "unfunded mandates" running in the other direction.In the Waco Tribune Herald, McLennan County Precinct 4 Commissioner Ben Perry articulated the oft-heard complaint:Indigent defenses expenses are a good example of an unfunded mandate forced on counties, Perry said. The state once covered the costs of providing legal representation for people accused of crimes who cannot afford adequate defense, as required by the U.S. Constitution. But the state has been reducing its contribution for years. The county has almost $4.7 million budgeted for indigent defense this year, up from $4.1 million in 2014. That includes $270,000 in state money this year, down from $532,000 in 2014. The Texas Fair Defense Act of 2001 does not include a way to pay for its requirements, shifting the expenses to county taxpayers, the county’s resolution states. Statewide spending on indigent defense in 2016 was more than 2.7 times as much as it was when the act passed, according to the Texas Association of Counties. The state spent $247.4 million in 2016, up from $91.4 million in 2001.The second paragraph in that pull quote is just a lie. There has never been a time when the state paid for all indigent defense costs in Texas; it was entirely a county-level responsibility until after the new millenium. The article itself includes a graphic demonstrating that claim is false:Notice the state contribution in 2001 was $0. The state began to put in MORE money after the Fair Defense Act, not less. Moreover, the majority of the increase at the county level may be accounted for by inflation and population growth. The big (unstated above) problem is that, before the Fair Defense Act, counties simply didn't comply with their obligations to appoint counsel, especially in misdemeanor cases. That was, indeed, cheaper. In many counties, when the Fair Defense Act passed, no misdemeanor defendants were appointed counsel - zero, zilch, nada. Now, appointment rates often approach 50 percent, not great but better. You can blame the state for making the locals comply with the constitution, if you prefer to deprive defendants of their 6th Amendment right to counsel to save a buck. But that doesn't make this an unfunded mandate, any more than it's an unfunded mandate to require counties to pay for local prosecutors.The volume of indigent defense services required is largely a function of local decisions and priorities, so if the DA's office is still prosecuting lots of penny ante cases even after crime has declined for two decades, locals should foot the bill for those defense costs.The flip side of this "unfunded mandate" argument are the un-discussed unfunded mandates to the state. McLennan County has a reputation for securing tougher-than-typical plea bargains, but state taxpayers must pick up the tab for high incarceration rates and longer sentences. And those costs are FAR greater than the costs for those prisoners' lawyers.Grits has long believed the Lege should offer the Texas Association of Counties a deal on indigent defense: The state picks up the full indigent defense tab, and counties pay to incarcerate every defendant they send to TDCJ for the whole time they're inside. Then everything would be "fair."Except that "fair," as I frequently tell my granddaughter, is a place where they judge pigs. It doesn't generally have much to do with the Texas justice system, and certainly not with how it's fi[...]

Secret courts, Kafkaesque tales, and a prosecutor fired for fidelity to the law


Let's clear a few browser tabs with a quick roundup:'Kafkaesque' tale began with Class C stopHere's a story from In Justice Today - "Traffic stop begins man's Kafkaesque journey through a Texas county's bail system" - that ties together the issues of arrests for Class C misdemeanors in Harris County and their bail litigation, about which we updated with an interview from one of the plaintiff's attorneys in our latest Reasonably Suspicious podcast.Harvey washed away Harris jail crowding gainsSpeaking of the Harris County Jail, after making some progress in recent years, it's overcrowded again thanks to court backlogs from Hurricane Harvey. They may seek variances to use temporary beds at the next Jail Standards Commission meeting.Secret courts in Dallas?Bail hearings in Dallas are held in secret, reported the Texas Observer! That's nuts. Open courts doctrine, anyone? Anyone?SCOT to decide if DA can fire prosecutors for refusing to violate Michael Morton ActPrivate employers cannot fire an employee for refusing to violate the law, but former Nueces County DA Mark Skurka fired a prosecutor named Greg Hillman for refusing to withhold exculpatory evidence from the defense in violation of the Michael Morton Act. Now, the Texas Supreme Court will decide whether sovereign immunity protects the DA from accountability. Lisa Falkenberg at the Houston Chronicle authored a fine article on the subject.Not fakingA Milam County Jail inmate - a probationer awaiting access to drug treatment services - has filed suit after receiving a beating from guards that left him paralyzed from the waste down. He alleges that staff ignored his injuries and a nurse accused him of "faking." See coverage from The Daily Beast and reform model passes in CACalifornia has passed major police accountability legislation. I will be curious to see what they did and compare it to the big Texas bill on the topic proposed by Rep. Senfronia Thompson last session.'The Recidivism Trap'Our old pal Vincent Schiraldi along with John Jay's Jeffrey Butts authored an important commentary for the Marshall Project titled, "The Recidivism Trap." They argue persuasively that, "Rather than asking 'what’s the recidivism rate?' we should ask an entirely different set of questions about justice interventions." Related: Grits has previously questioned whether low recidivism rates are always an appropriate goal (see here and here), since states like Texas and Oklahoma which over-incarcerate low-risk offenders are more likely to see low recidivism than states that limit 24/7/365 caging to more high-risk people.[...]

Considering Texas DA primaries in light of new models out of Philly for prosecutors opposing mass incarceration


The March episode of the Reasonably Suspicious podcast we included an update on the March 6 primary elections involving Texas District Attorneys and the Court of Criminal Appeals.  Then we compared so-called "progressive" District Attorney candidates in Dallas to Philadelphia's new DA, Larry Krasner, discussing a new memo Krasner put out directing his prosecutors to use their discretion to reduce mass incarceration. By contrast, Texas' "progressive" DAs and DA candidates are all much more moderate. I've excerpted those two segments here: allowfullscreen="" frameborder="0" height="30" mozallowfullscreen="true" src="" webkitallowfullscreen="true" width="500">See a transcript below the jump.Excerpt from the March 2018 Reasonably Suspicious podcast featuring Scott Henson and Amanda Marzullo.Scott Henson: Next up, let's update our coverage of District Attorney and Court of Criminal Appeals races in the March 6th primaries.Mandy Marzullo: Texas' primary elections were held on March 6th. Six of the 12 elected district attorneys facing challengers were defeated. Of particular note, voters asked DA's Nico LaHood in San Antonia, Abel Reyna in Waco and Steve Tyler in Victoria based on campaigns against prosecutorial over-reach. In Dallas, Judge John Creuzot won a tight democratic primary against a candidate backed by national level progressive reformers.Mandy Marzullo: Meanwhile, presiding Judge Sharon Keller narrowly won re-election to the Court of Criminal Appeals with just 52% of the vote. In a race to replace Elsa Alcala who is retiring, GOP voters selected Judge Michelle Slaughter of Galveston, a civil lawyer with backing from the pro-life end guns wing of the GOP base who defeated two criminal justice veterans with decades of experience. The Texas Tribune reported that she was "the only one of the three without a criminal appellate background having worked in civil law before becoming a judge." So Scott, which of these primary races stood out to you and what should we take from this round of elections?Scott Henson: Well, I guess as far as standing out, the ones that I enjoyed the most were Abel Renya and Nico LaHood going down. I thought both of those were pretty well deserved. Abel Renya in Waco in particular really had just kind of made that county a laughingstock over the whole Twin Peaks biker shooting case. They will be paying for the aftermath of that case for years and years to come in civil suits and really just the chaos it's created in the court system there is almost unprecedented.Scott Henson: Nico LaHood of course had alienated just about everybody he could think of before the voters finally ousted him. Then also I guess it's just impressive overall that there were 12 DAs statewide that had contested primaries, six of them overall lost, so we are in a period where those are not just safe incumbent seats automatically. People are losing those and we saw several people taken down this time that I think wouldn't necessarily have been expected just a year or two ago. People thought Abel Renya was pretty safe until all the Twin Peaks stuff just utterly devolved and all of a sudden he's gone.Mandy Marzullo: Yeah. Well, in fairness the Twin Peaks case is a big deal. It wasn't just a small issue here and there. We're talking about dozens and dozens of people being incarcerated and no convictions two or three years later.Scott Henson: That's right. That's right. He basically just screwed that case up in every way you possibly could and now they're all falling apart. He can't get the attorney general to take them. No one really knows how this is going to all play out because nothing quite this stupid has ever been done before.Mandy Marzullo: On this magnitude.Scott Henson: That's r[...]

Texas overdose problem still more focused on meth than opiods


The Texas House Select Committee on Opiods and Substance Abuse posted handouts from their March 27 hearing, and Grits thought it worthwhile to point out a few highlights. See in particular handouts from:Texas Legislative Budget BoardTexas Department of Criminal JusticeMeadows FoundationLet's do a quick overview of substance abuse resources in Texas, then try to answer a couple of questions raised by the Texas District and County Attorneys Association on their Twitter feed.For starters, funding for substance abuse in Texas comes primarily from two sources: Medicaid and TDCJ. Between them, those two sources account for 97.4 percent of all government substance-abuse funding in the state, split roughly equally, reported LBB. Just more than $386 million are spent on SA treatment through Medicaid, while around $343 million is spent on treatment through TDCJ.The difference, though, is where state money is spent. Overall, 58 percent of funds spent on substance abuse come from state general revenue coffers. But most of that is spent on treatment in corrections environments. Overall, state general revenue funds pay for only 24 percent of Medicaid expenditures on substance abuse, but more than 98 percent of treatment funds at TDCJ.With a total incarcerated population of 145,399, TDCJ has 10,047 incarceration beds dedicated to substance abuse, and the parole system has 7,592 people on specialized substance abuse caseloads.There are another 2,897 secure treatment beds used by the probation system, TDCJ reported.Source: Meadows FoundationThe Meadows Foundation estimated that nearly eight (8) out of 100 Texans suffer from a substance abuse disorder. More than half of adult Texans drink alcohol, 10 percent use marijuana (!), and 2 percent use cocaine, the foundation reported.Treatment admissions for alcohol, cocaine/crack, and opiods have declined in recent years, while admissions for heroin and meth have been rising. Overwhelmingly, the largest number of admissions were for alcohol.Source: TX HHSCTDCAA on its Twitter feed linked to a chart showing opiod deaths in Texas happen at a lower rate than nationally, and would like to credit law enforcement efforts. They tweeted: "Questions for #txlege to answer next session will include (a) why is TX faring better? and (b) how to we maintain/improve that performance?"Certainly, people without access to healthcare have a tougher time getting addicted to prescription opiods, and Texas has among the highest uninsured rates in the country. Moreover, while not approaching spikes seen in some states, overdose deaths attributable to opiods and heroin have more than doubled since the turn of the century, according to the HHSC graphic cited.But really, the comment mainly just ignores the fact that drug use differs regionally and Texas addicts still tend to favor meth over heroin. This fact has historical roots. When Texas clamped down regulating legal antihistamines used by addicts to cook meth, Mexican drug cartels took over the trade and began pumping truckloads of cheap speed into the state to fill the gap in the market. Meth prices plummeted while addiction and overdoses increased. So it's not so much that Texas is "faring better" as that the state's patterns of addiction aren't the same as in Ohio and Pennsylvania. According to the Addiction Research Institute at the UT-Austin School of Social Work, "There were 715 deaths due to methamphetamine in Texas in 2016, as compared with 539 due to heroin."Tack on those deaths, and all of a sudden Texas isn't so much "faring better" than "faring differently."Moreover, the Addiction Research Institute gave the best explanation for why Texas hasn't seen as many opiod deaths as in the Northeast, and it's not because of law enforceme[...]

Revenge porn from the DA? ... and other stories


Let's clear a few browser tabs with a quick roundup:Just Liberty Platform Campaign UpdateAs results roll in from around the state, Just Liberty's platform project turned out to be even more successful than we thought. Resolutions to implement #cjreform were passed in 17 Republican senate districts and 16 Democratic ones. Most of the Democratic SDs approved all 16 Just Liberty resolutions. And on the Republican side, the Young Republican Federation of Texas endorsed our entire agenda and encouraged their members to champion #cjreform resolutions in their own local conventions. We even created a catchy little jingle to promote the campaign online. Now it's on to the state conventions, where the party platforms will be finally approved and hopefully include our proposals. The process of promoting the resolutions within these party processes has already helped identify new allies around the state, whom we hope in turn will add weight and credibility the legislative push on #cjreform issues in 2019.Voting case against ex-felon a politicized disgraceThis Tarrant County case of a woman receiving a five year sentence for voting with a felony record is one of the most absurd and politicized abuses of justice I've seen in quite a while (perhaps going back to the roundup after the Twin Peaks Biker Massacre, if we're ranking episodes of prosecutorial overreach).The DA, discovery, and 'revenge porn'Speaking of the Twin Peaks Biker Massacre, DA Abel Reyna's office got dinged by a judge for releasing nude photos of a defendant's wife that he had on his phone to the other 176 defendants as part of discovery materials. Critics dubbed the episode a case of "revenge porn," which is a bit far-fetched, but a funny way to frame it. The defendants have all been ordered to delete the images.'Confessions taken here'All the high-profile murderers who pass through Williamson County appear to confess to this guy. Or maybe the confidential informant system incentivizes fabricated testimony. You make the call.Might more ticket writing reduce traffic fatalities?Corpus Christi has announced a plan to ramp up traffic ticket writing in response to traffic fatalities, although there's at best a tentative and unproven correlation between the two. For example, statewide, Texas has seen traffic fatalities decline during periods when police officers wrote fewer tickets. The correlation between writing more tickets and generating more revenue, by contrast, is much more firmly established.Texas seeks shorter capital deadlinesTexas is seeking to opt-in to shortened timelines for death penalty appeals, reported Keri Blakinger at the Houston Chronicle, after Attorney General Jeff Sessions suggested it last year. Given the often-poor quality of capital representation under current timelines, it can't be a great idea to squeeze those timelines even further.[...]

NY Times story on Galveston indigent defense ripe for other reporters to localize


In the New York Times last week (March 29), former Austin Statesman editor Richard Oppell authored an article that could resonate throughout Texas indigent defense systems, as it describes a practice that's widespread, not remotely limited to the judge or attorney in Galveston at the center of the story. Here's the heart of the allegations:A criminal defense lawyer in Galveston, Tex., says he was pulled off cases defending poor clients because he spent too much time on them and requested funds to have their charges investigated. Needless to say, his clients were not the ones complaining. Instead, it was the judge, Jack Ewing, who appoints lawyers for those in his courtroom who cannot afford them. “You overwork cases,” Judge Ewing told the lawyer, Drew Willey, according to excerpts from a recorded conversation cited in the lawsuit. Though an estimated four of every five criminal defendants in the United States use court-appointed lawyers or public defenders, many of the nation’s indigent defense systems have been criticized as desperately inadequate, leading to false guilty pleas and overincarceration. Lawyers who represent the poor can be required to juggle hundreds of cases at a time, accept pay far lower than the market rate, or take cases for which they have little experience. This new case, though, exposes another potential problem: Indigent defense lawyers often get their assignments from the judges in whose courtroom they appear. This discourages a robust defense, experts say, and leads to an emphasis on resolving cases quickly. The tensions may be familiar to lawyers, but they are rarely so candidly aired as in this lawsuit, filed in federal court last week and bolstered by parts of a recorded conversation with the judge.Grits has heard similar stories from defense attorneys for as long as I've paid attention to the Texas justice system, including attorneys stiffed not just for time worked but also for investigators' fees or even forensic services.Which brings me to this observation for Texas-based reporters: This is a national story which can be localized. This isn't the only Texas jurisdiction, by any stretch, in which judges reduced pay requests from lawyers as excessive when they tried to put on a zealous defense. There are also stories out there of lawyers losing out on appointments because judges considered them a tad too zealous. Attorneys who make a living representing indigent clients must routinely take on caseloads well beyond bar-association-recommended guidelines in order to pay for a mortgage, middle-class lifestyle, and law-school debts. This story explains why, and it's not just happening in Galveston.So, for my reporter friends on the local courthouse beat: There's a courthouse paper trail on cases where judges reduce attorneys' fees, which a local attorney who takes indigent cases or the court coordinator can help you identify. Then, one simply calls up the attorneys to ask why they requested the additional pay. Follow up with calls to the judges in question to get their side of the story; the county judge so s/he can lodge a complaint about unfunded mandates from the state; then make a call to indigent defense experts like the Texas Fair Defense Project or Civil Rights Corps (the two nonprofits that sued over Harris County's unconstitutional bail practices), and you've just localized a national story.Indeed, there's a small mountain of data, including lawyer-specific payment information, available from the Texas Indigent Defense Commission. Once you dig into these topics, there's a lot of material for an enterprising reporter with which to work.So thanks, Richard Oppell, for exposing a sta[...]

Danny Ray Thomas shooting cast harsh spotlight on Harris County police shootings


The shooting of Danny Ray Thomas, a mentally ill man with his pants around his ankles who was shot to death by a Harris County Sheriff's deputy, has made national headlines and led to a greater-than-ever light cast on shootings by law enforcement in Texas' largest county.

Grits wanted to round up a few of the more notable stories, as this episode appears as though it will frame debates over police accountability in Texas for the foreseeable future:

March Reasonably Suspicious Podcast: Primary election wrap-up, pushing #cjreform in state party platforms, unconstitutional legal fees, Harris County bail suit update, a stunning judicial power play, and more


Sliding in under the wire at the end of the month, check out the March 2018 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice politics and policy. Subscribe on iTunes, GooglePlay, or SoundCloud, or listen to the podcast here: allowfullscreen="" frameborder="0" height="30" mozallowfullscreen="true" src="" webkitallowfullscreen="true" width="500">Here's what my co-host Mandy Marzullo and I talked about this month:Top StoriesConviction overturned because Tarrant County District Judge George Gallagher shocked defendant with stun belt for no valid security purpose.Texas Court of Criminal Appeals holds more court fees unconstitutional for raising revenue rather than paying for justice services.Primary election roundupRecapping Texas contested Texas DA and Court of Criminal Appeals racesComparing "progressive" DA candidates in Dallas and elsewhere to Philadelphia's Larry KrasnerUpdate on Just Liberty's campaign to include criminal-justice reform in both Texas state party platforms. Includes Just Liberty's catchy jingle done by some of the same amazing musicians who performed our original podcast music.Check in on Texas pretrial reform litigationHarris County bail litigation: Interview with Susanne Pringle, executive director of the Texas Fair Defense Project, regarding the 5th Circuit's ruling in the Harris County bail litigation in which her group is one of the plaintiffs.Travis County plea mill challenged: Local attorneys file a demand letter challenging misdemeanor dockets where lawyers must negotiate plea bargains almost immediately after receiving the file and meeting their clients for the first time.The Last HurrahHarris County District Judge Michael McSpadden blamed Black Lives Matter for poor advice to black defendants sitting in jail.For 30 years, municipalities in Tarrant County have paid to house defendants pretrial in unregulated city jails until prosecutors at the DAs office filed charges. The new Sheriff has changed the practice to match the other 253 counties.Johnnie Lindsay, one of the earliest Dallas DNA exonerees who was frequent visitor to the state capitol advocating innocence reforms, passed away this month. Scott Henson remembers him and his contributions.Find a transcript of the podcast below the jump.Transcript: Reasonably Suspicious podcast, March 2018, hosted by Scott Henson and Amanda Marzullo.Mandy Marzullo: Hi, I'm Amanda Marzullo. Police and EMS responded recently after a Lufkin man accidentally shot himself in the buttocks. So Scott, what explains this guy's poor aim?Scott Henson: For the hundredth time, I have no explanation and I apologize in advance for doing this show standing up.Mandy Marzullo: Well, I appreciate the explanation and the apology, but that's not responsive to my question.Scott Henson: Okay, fair enough. Now, it actually is a funny story. This guy was putting a loaded handgun, for personal safety reasons, of course, in between his box springs and mattress.Mandy Marzullo: As one does.Scott Henson: As one does, yes, and it turned out the box springs were a little on the old side, a spring punched through, hit the trigger of the gun and shot off part of his ass. So, really a classic Texas tale in many ways.Mandy Marzullo: Oh God, that was a bad pun, Scott.Scott Henson: Well, hello boys and girls, and welcome the March 2018 of the Reasonably Suspicious podcast covering Texas criminal justice, politics, and policy. I'm Scott Henson, Policy Director at Just Liberty, here today with our good friend, Amanda Marzullo, whose day job is Executive Director at the Texas Defender Servi[...]

Open records review should include criminal justice, and other stories


A few quick hits before I finish editing our podcast today:CCA takes up cell-phone location data caseGrits was a bit surprised to see that the Texas Court of Criminal Appeals granted review on Ex Parte Christian Sims involving Fourth Amendment/cell-phone location data issues, given that the US Supreme Court's ruling in Carpenter is expected to come out this term. See the petition here and a case summary from the State Prosecuting Attorney.) OTOH, the CCA and SCOTUS are addressing slightly different questions: Whether cell-phone location data is subject to Fourth Amendment protections is the question at stake in Carpenter, while Sims asks whether Texas' statutory exclusionary rule applies to violations of the Fourth Amendment and Art. 1, Sec. 9 of the Texas Constitution.Possible innocence caseDNA testing excluded a Tarrant County man who's been in prison 19 years for alleged child molestation and point to another, unknown party. Prosecutors insist he's guilty, anyway.  Good coverage from the Fort Worth Star Telegram.Open records review should include criminal justiceThe House Committee on Government Transparency meets next week in part to discuss updating open records laws (see coverage from the Caller Times). The push to do so doesn't involve criminal justice, but transparency laws in that area need serious attention. See this Grits commentary from 2016 regarding aspects of the Public Information Act related to the justice system which have been gutted in favor of opacity over the last three decades.Skimping on mental health boosts crim-just costsThe SA Express News recently featured a good editorial on how the Texas Legislature's failure to fund mental health services impacts the criminal-justice system. Reported the paper:[Texas] taxpayers are footing an estimated annual bill of $1.4 billion in emergency room costs and another $650 million through local justice systems to address mental illness and substance abuse disorders. In Bexar County alone, 10 percent of the 31,438 individuals booked in the county lockup were diagnosed and treated for mental illness.The editorial touted the recently created Judicial Commission on Mental Health as a potential vehicle for suggesting reforms.[...]

Forensic hypnosis under fire


In December, Grits posted a "brief primer on forensic hypnosis" after we'd discussed a capital case out of Farmer's Branch involving a hypnotized witness in the November Reasonably Suspicious podcast. Now, Christian McPhate at the Dallas Observer has published an extensive profile of that case and how the courts and law enforcement have handled hypnosis-influenced testimony in Texas over time. Anyone interested in junk-science issues should give it a read.

Benchmark created for 'progressive prosecutors,' and other stories


Grits doesn't have time to blog on these topics at the moment but y'all should probably be aware of them:Philly prosecutor pioneering decarceration measuresGrits has argued before that electing "progressive" prosecutors wouldn't necessarily stop mass incarceration unless they used their discretion in ways that none of our Texas folks have done yet. Larry Krasner in Philadelphia is the first DA in the nation to actually attempt to use his discretion in that way. Here's the memo he sent to his prosecutors changing practices. Give it a read, there's cool stuff all the way through to the end. See coverage from Slate. This will provide a blueprint for what can be expected of future, self-styled "progressive prosecutors" who win District Attorney races. By contrast, for example, in the Dallas primary one couldn't slide a piece of paper between the positions of the two DA candidates in the Democratic primary, both of whom wanted to claim a "progressive" mantle. It would have been a more interesting race if those two could have been made to tell voters whether they'd go so far as Mr. Krasner, and if not, why not.Corrections chair target of sleazy GOP oppo campaignRepublican Steve Stockman decided to play hardball with Texas House Corrections Committee Chairman and friend-of-the-blog James White on the off chance he decided to run for Congress, including planting an intern in his capitol office, among other dirty tricks.Youthful Offender Program may receive more scrutinyBriscoe Cain, a Tea Party Republican state rep, is calling for an investigation into the problems at the TDCJ Youthful Offender Program that caused them to fire the warden and move the program from Amarillo Brazoria County to Huntsville. Absurdly, TDCJ's new flack has portrayed the incident spurring the changes as not involving systemic flaws, but nobody fires wardens or moves programs which have been in place for years unless there's a systemic problem. Such comments speak to a culture of denial in the agency. See related Grits coverage.Pantsed, then shot deadBefore video footage was common, these sorts of incidents were more easily swept under the rug. A Harris County Sheriff's Deputy shot a man with his pants around his ankles. And in Fort Worth, video led to the indictment of a police officer who attacked a young black man at a local hospital. "[Jon Preston] Romer ... was indicted last week on charges of official oppression, aggravated perjury and making a false report to a police officer in connection with the incident."Litigation to watchA Texas prisoner's family has sued after his suicide, alleging that TDCJ didn't provide him with needed medications.Good riddanceRead a post mortem on the Abel Reyna campaign.[...]

5th Circuit benchslapped! All about the money, Tx bodycam law a boon to bad cops, and other stories


Here are a few odds and ends which merit Grits' readers interest while my own is focused elsewhere:Benchslapped!The US Supreme Court issued a unanimous benchslapping to the Fifth Circuit Court of Appeals in Ayestas v. Davis for denying funds for a defense investigator to develop a record about the defendant's mental health and family history. Mandy Marzullo and I had discussed the case on the Reasonably Suspicious podcast in November.All about the moneyThe Texas House Appropriations subcommittee that covers criminal-justice will hear testimony next month regarding two interim charges which may interest Grits readers: Adult and juvenile probation funding formulas, and whether to establish a fee-for-service model at DPS crime labs to cover the looming shortfall.The former is important because adult probation directors are the most vocal and strident opponents of sentencing reform, fearing that reducing drug-possession charges to a misdemeanor, for example, would result in a large, immediate drop in revenue. So debates over their funding formula are central to whether the Legislature can muster the political will to continue decarceration reforms. As for the crime labs, the Legislature only gave them enough general revenue funding to cover part of the biennium, then the Governor eliminated new fees created to cover the rest of their budget. As of now, they're expected run out of money completely a few months (maybe we'll learn how many at this hearing) after the new fiscal year begins in September.Texas bodycam law a boon to bad copsGrits readers are well aware of Texas' crappy bodycam law, but now thanks to a new Attorney General opinion, even Republican District Attorneys are learning just how far this bad law goes to protect cops who cross the line. Dallas DA Faith Johnson had asked the Attorney General whether, under the law, an officer was entitled to review only his own bodycam footage, or all bodycam footage from the scene. After all, that would mean the officer had LOTS more information to which he would not have had access at the time before he's required to make a statement, creating a risk that he or she might embellish or alter their story to fit a narrative instead of just testifying truthfully. Indeed, in her letter Johnson feared that, even if an officer didn't alter his or her story, it would be difficult to combat a public perception that that had happened. But Paxton said officers get to see everything. See coverage from Michael Barajas at the Texas Observer.Prosecutor's song choice may connote misconductTexas' first death sentence of 2018 involved a case from a small town featuring alleged prosecutor misconduct, including Brady violations and, at closing, playing "an emotional song from the hit 2012 movie Pitch Perfect in a bid to allude to evidence the judge had already ruled inadmissible." (Cue NFL hall-of-famer Chis Carter declaring, "C'mon, man!") Wrote Lauren Gill at InJustice Today, "in 2017, nearly half of the stays of execution granted in the state involved cases that 'may have been tainted by false or unreliable evidence,' according to the website The Open File, which tracks prosecutorial misconduct."Police 'testilying'When Grits stopped working professionally on police accountability topics after leaving the ACLU of Texas in the mid-aughts, my focus on mendacious informants and testilying police officers waned. But it remains a significant problem, and the New York Times recently published a feature on police perjury that's well worth reading. They're ci[...]

Justice Needs a Platform: Young Republican Federation backs justice reform


With most county and senate-district political conventions being held tomorrow for both major political parties, readers will recall that Just Liberty, working with key allies, had proposed a variety of resolutions to amend both the Republican and Democratic Texas state party platforms to include key criminal-justice reform provisions. If you haven't heard the little jingle we created to promote this campaign, check out this promo for people attending Democratic conventions tomorrow:

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Notably, the Texas Young Republican Federation took up the banner and helped propose these resolutions at the grassroots level in the GOP. Check out an op ed by Jason Vaughan, the YRs State Republican Executive Committee liaison, laying out the 16 resolutions and declaring justice reform a top priority for his group.

Opined Mr. Vaughan, "Texas Young Republicans represent the entire spectrum of the Republican Party. Because of this, sometimes finding agreement on specific policy can be tough. There can be a lot of differences on how Republican principles should become policy. The one area where we see overwhelming support is criminal justice reform."

This is a big reason why justice reform is possible in a red state like Texas. Significant constituencies within the GOP base support it, including more than a few young people who represent the future of the party.

On the limits of tuff-on-crime ideology at the Texas Court of Criminal Appeals


One of Grits' favorite pastimes is parsing contentious Texas Court of Criminal Appeals decisions to better understand the dynamics and factions arising on various topics. Since nobody in the mainstream media routinely covers these cases, this usually involves tilling virgin soil. And such is the situation with Ex Parte Jeremy Wade Pue, which was decided on March 13 but has been ignored in the press. Mr. Pue was represented by an attorney from the State Counsel for Offenders.Judge Bert Richardson wrote the main opinion, with Judges Mary Lou Keel and Sharon Keller authoring concurrences and Judge Kevin Yeary isolated by himself in dissent, which is a space he's increasingly chosen to occupy in recent cases. To me, this is perhaps the most significant change in the court's dynamic in the wake of the 2016 election, when Judges Keel and Walker joined the court.While on capital cases, Judge Yeary has tended to be more defense-oriented, in more workaday cases he has proven himself a tuff-on-crime outlier, even compared to the Government-Always-Wins (GAW) faction, led by Judge Keller. Indeed, Yeary's pro-prosecutor stances are sometimes so extreme that even the traditional GAW faction members (Keller, Hervey, and Keasler) cannot abide them. That's what happened in Pue, where the state sought to uphold a 30-year sentence which, in light of the facts, clearly was improper.The case involved an illegal sentence for evading arrest with a vehicle, which in Texas is a third degree felony punishable by 2-10 years. Two California cases were used as an enhancement under Texas law to increase the penalty to thirty years under the habitual-offender statute. But the California convictions were not "final," as required by Texas law, and the defendant's lawyer failed to appeal the issue. (Mr. Pue separately has also alleged an ineffective assistance claim.) The CCA majority said the sentence was illegal, and even the GAW faction agreed.Judge Yeary would let the sentence stand, insisting the claim should have been raised on direct appeal and should not be alleged for the first time in a habeas writ.  Moreover, he made a distinction (which Judge Keel rightly considered spurious) between a sentence outside the prescribed range (for example, a life sentence for a third degree felony where the max should be ten years), and illegally using a prior conviction to increase the penalty outside the prescribed range. Keel called out Yeary for "inconsistent" reasoning, and he tried to respond in a footnote. But when you read them both, it's pretty clear she's right and he's confused. Even Judges Keller and Keasler thought so.Further, Judge Keller believed Pue's lawyer performed ineffectively:Because the conviction was not final regardless of what law applies, and because Applicant has no other prior convictions (aside from the two in California), I would hold that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.Keller believed Pue's lawyer's performance was deficient on its face ("Given the circumstances, I would hold that there is no conceivable strategy for failing to challenge the prior conviction, and so, there is no need to remand for factual development.") Judge Richardson and the majority, however, noted that the issue was raised at trial and he was reluctant to allege ineffective ass[...]

Additions to Grits' Reading Pile: On prosecutors, pretrial detention, plea bargaining, and more


Let's add a few items to Grits' reading pile, and perhaps to your own. First,On pretrial detentionLaura and John Arnold Foundation: "Investigating the Impact of Pretrial Detention on Sentencing Outcomes"From D Magazine: "Trapped in Lew Sterret: Dallas County is being sued over the constitutionality of its bail system. But what's it like to actually go to jail?"See an academic paper on "Pretrial Detention and the Decision to Impose Bail in Southern California"From the UK, here's a defense of supplementing human judgments with artificial intelligence in pretrial detention decisions.On ProsecutorsDavid Alan Sklansky says the least understood "problem with prosecutors" is the ambiguity of their role. Here's a brief item on "Post-conviction Prosecutorial Duties."On ForensicsBrandon Garrett and Chris Fabricant analyzed 229 Daubert rulings (admitting scientific or expert evidence) purporting to assess the "reliability" of forensic evidence and found that the "reliability test" is seldom applied and almost never used to exclude potentially unreliable testimony.On Instructing JuriesSee an interesting proposal for fixing known flaws in common jury instructions surrounding "beyond a reasonable doubt" by articulating for their jury their relative strength compared to lower burden-of-proof thresholds, like "preponderance" or "clear and convincing."On the Fourth AmendmentThe title evokes one of the most vexing legal questions of the digital age: "The Third Party Doctrine and the Future of the Cloud." Can't wait for Carpenter to come out!On Plea BargainsA coupla items here:In Australia, plea bargaining is governed by standardized rules overseen by judges, not by prosecutors. Here's an article titled, "Plea Bargaining: From Patent Unfairness to Transparent Justice," suggesting how that might work in the United States.Will have to read it, but from the abstract I'm not sure I agree with this one: "Eradicating Assembly Line Justice: An Opportunity Lost by the American Bar Association Criminal Justice Standards." Hard to ask one's client's to sit in jail longer on principle. After all, it's not like the lawyer has to sit in jail with them. Seems like there have to be better solutions.On Competency RestorationThis was a long-time Grits hobby horse to which of late I haven't had the bandwidth to pay much attention. But I've long been a fan of at least testing outpatient models - mainly as an expression of my lack of confidence that the Texas Legislature will ever sufficiently fund forensic beds at state mental hospitals - and have regretted that Texas never doubled down on that strategy after testing it in pilot programs. So I'm interested to read this academic offering from Susan McMahon out of Georgetown Law titled, "Reforming Competence Restoration Statutes: An Outpatient Model." Texas' failed system for competency restoration at state mental hospitals has been underfunded to the point of crisis since at least the earliest days of this humble opuscule. Maybe she can point to a better path.[...]

Pop quiz on forensics


A recent research paper from Jonathan Koehler, a Northwestern University law professor, titled "How trial judges should think about forensic science evidence," opened with a short quiz. Grits readers should be well educated on these topics, but let's see how you do:

"Here is a forensic science test for you. Please answer each of the three questions below True or False.

"1. Scientific tests conducted over the past 100 years have repeatedly demonstrated that everyone has a unique set of fingerprints.

"2. Recent scientific studies show that the chance that DNA samples from two different people will be identified as a “match” by a competent, well-trained DNA examiner is less than one in a million.

"3. Data from scientific tests conducted over the past few decades provide a reliable basis from which to estimate the accuracy of most forensic methods that have been admitted in U.S. courts.

"The answer to all three of these questions is False. How did you do?"