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Grits for Breakfast



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



Updated: 2018-01-17T18:16:17.648-06:00

 



Texas should replicate OK approach on drug felonies

2018-01-14T08:38:37.364-06:00

Your correspondent has maintained for years that, after Jim Thorpe left, the best thing ever to come out of Oklahoma was I-35. Grits has long been a staunch advocate for a border wall, but would prefer it built along the Red River instead of the Rio Grande. However, after Okie voters approved adjustments to the criminal code to reduce sentences for user-level drug possession to a misdemeanor, perhaps it's time to cast off such dated views.

Prosecutors in Oklahoma County, reported The Oklahoman, filed 24% fewer felony filings in 2017 compared to 2016, declining from 10,043 felony cases filed in 2016 to 7,628 in 2017, or a 24% drop. The increase would be even bigger but the new drug laws didn't take effect until July. Estimated the local public defender, "Probably at least two-thirds of the decrease was the decision of the voters to pass the criminal justice reform measure on lowering felonies to misdemeanors for low-level theft crimes and for drug possession charges." Which means that not only did the new law successfully reduce prison admissions by diverting low-level drug cases, other felony crimes appear to have declined at the same time. (N.b.: Drug manufacturing and distribution remain felonies.)

Texas has passed numerous justice reform measures in recent years, but our Legislature has balked at the drug policy change Okie voters made. Now that the approach has been proven to work, Texas should follow their lead.



'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

2018-01-13T09:22:41.625-06:00

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."However,District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. "We don't use the death penalty as a plea bargaining tool," she said.Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. "It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."So, there's that.Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. "Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.Flawed forensics, for example, may be challenged at the habeas stage under[...]



More than 1% of all Texas men in prison

2018-01-13T15:16:59.112-06:00

How does Texas' incarceration rate stack up to other states? Still on the high side, according to the new Bureau of Justice Statistics report, "Prisoners in 2016."
At year-end 2016, 12 states had imprisonment rates that were greater than the national rate of 450 per 100,000 U.S. residents of all ages: Louisiana (760 per 100,000 state residents), Oklahoma (673 per 100,000), Mississippi (624 per 100,000), Arizona (585 per 100,000), Arkansas (583 per 100,000), Alabama (571 per 100,000), Texas (563 per 100,000), Missouri (532 per 100,000), Kentucky (518 per 100,000), Georgia (512 per 100,000), Florida (481 per 100,000), and Nevada (460 per 100,000) (table 7). ...
More than 1% of all males in seven states were in prison on December 31, 2016: Louisiana (1,469 per 100,000 male state residents), Oklahoma (1,207 per 100,000), Mississippi (1,200 per 100,000), Arkansas (1,095 per 100,000), Alabama (1,085 per 100,000), Arizona (1,071 per 100,000), and Texas (1,040 per 100,000).
So Texas is one of only seven states that incarcerates more than one percent of men. That's an unfortunate club in which to claim membership.

The report also noted a red flag for Texas: Admissions in Texas rose by 2,500 from 2015 to 2016 - one of only three states to see such an increase.

These sorts of data are why Grits sometimes tires of crowing about Texas' 2007 community corrections reforms credited with leveling off prison population growth, which had seen a steep upward trend before then. Even so, Texas remains vastly over-incarcerated. And 2007 was now more than a decade ago. It's nigh past time in 2019 for the Lege to take additional steps.

RELATED: From the Houston Chronicle, "Texas female prison population rises as male population decreases."



Twin Peaks defendants offered misdemeanor probation, negligent murder, and other stories

2018-01-10T15:13:33.595-06:00

Let's clear some browser tabs with a roundup post. Here are several items of which Grits readers should be aware, even if I haven't had time to write about them:Twin Peaks defendants headed to trialThe McLennan DA offered one of the 150+ defendants in the Twin Peaks biker massacre a plea deal of a deferred misdemeanor probation instead of the first-degree felony he was charged with, and the defendant said no, we're going to trial. Grits had earlier placed the over-under regarding how many of the original 177 people arrested would be convicted of anything at 1.5. That still sounds about right, though at the moment, if Grits were a betting man, I'd place my wager on "under." I couldn't begin to estimate the over-under regarding how much this fiasco may eventually cost McLennan County in civil suits for constitutional rights violations, but it'd be a good bet it'll be a non-trivial number.Firing director not a cure-all for Dallas juvie detention woesIn Dallas, the juvenile probation director may or may not have been run out of her job but is definitely on the hot seat for allegations that youth under her care at a treatment center weren't allowed time for outdoor exercise. The same facility last year witnessed allegations  that five boys aged 13 to 17 engaged in sex acts with one another while sleeping on the floor of the cafeteria due to understaffing. I don't dispute that the chief needs to go, but this is not an NFL team. Firing the coach doesn't change much about a government bureaucracy, which is more effectively influenced through the passage of laws, policies, and budgets. At the end of the day, real solutions will likely involve ponying up more money for staff and services to solve the problem, not just firing the bureaucrat in charge.All about the moneyIt took a guest columnist instead of working reporters to get to the heart of the debate over Austin's newly rejected police contract. Read Lauren Ross' article, it's the first time in the local press that the economic critiques of contract critics have been presented to MSM consumers in full form.Six year old died in awful shooting by Bexar deputiesA six year old was killed by a stray bullet last month after four Bexar County Sheriff's deputies, including one with a rifle, opened fire at an unarmed suspect, who also died (law enforcement insists she earlier had a gun but now cannot find it). As a result, the Sheriff is reviewing use of force policies. This one is a mess. The officers appear to have fired based on assumptions they brought with them to the scene, not what they saw in front of them. And clearly they didn't take into account that she was standing in front of an occupied mobile home when they opened fire. Bodycam footage would help here. A GoFundMe page was created on behalf of the family to cover funeral expenses.Some TDCJ units ill-equipped for cold weatherThe Texas Department of Criminal Justice faces allegations that inmates at up to 30 units slept in un- or under-heated cells during the recent cold snap. TDCJ denies the problem, but the Texas Inmate Family Association identified a couple of dozen underheated units, notably including the Allred Unit near Wichita Falls. Editorialized the Fort Worth Star-Telegram, "An ongoing lawsuit is demanding the state improve summer conditions. While they’re at it they should fix the heating for winter."Negligent murder?In Waco, a murder conviction was overturned because the jury was instructed to convict a defendant of murder based on "reckless" and "negligent" rather than "intentional" behavior. (A day care owner had given children in her care Benadryl and one of them died.) Prosecutors have appealed the case to the Texas Court of Criminal Appeals, where three votes to uphold the conviction are virtually guaranteed.Clemency beneficiary reoffendsWhen Barack Obama issued sentence commutations to hundreds of drug offenders, it was inevitable that some of them would eventually reoffend. That has finally happened i[...]



Austin press coverage of police contract still sucks, and other stories

2018-01-07T09:27:41.321-06:00

Here are a few odds and ends that deserve readers' attention even if I haven't had time to turn them into full, independent blog posts:Austin press coverage of police contract still sucksThe Austin press continues its one-sided coverage of the City Council's rejection of the police-union contract, larding their articles with quotes from contract supporters and minimizing the views of critics without fully explaining them. In an Austin Chronicle story published yesterday, for example, contract supporters were given a platform for predicting doom while contract critics were dismissed as know-nothings (e.g., my wife was dubbed a "gadfly"). According to reporter Nina Hernandez, council members who voted against the contract (all of them) "hadn't exactly considered the consequences of their decision," though there's no sourcing, much less factual basis offered for that opinion. Later, appearing to contradict herself, she complained that the council was "suffering information overload," which hardly jibes with her earlier calumny that they hadn't sufficiently studied the topic.The truth is, MSM reporters in Austin appear as a class to have misunderstood and misreported this entire debate from the get go. Ms. Hernandez now says she recognizes that, as one council member instructed her, "the Council's vote was more about the money" than the oversight piece (which means the press were the only ones in the room that night who didn't understand what they were watching). But no one in the local media is yet reporting on the most important implications of the scuttled contract: Freeing up around $10 million that the city council can spend in the current fiscal year over and above their current budget. How and when to spend that money is where the actual debate has moved at city hall, as well as among the activist players involved. But the press continues to flail, having missed the story and spun false narratives for so long that they don't now know how to begin to catch up. It's as though there's an almost willful decision by the local Austin press corps not to publicly report on what these debates are actually about.Texas law mandates bad bodycam policiesNote to reporters who want to localize a story about police bodycams based on the Leadership Conference/Upturn recommendations, like this recent SA Express News story: Texas' law is the source of the most important bad practices, like letting officers accused of misconduct review video before they're questioned, or erecting barriers to accessing video under open records. Increasingly more departments, most recently Arlington and Plano, are purchasing body cameras for their officers. MORE: Here's a new academic piece on body cameras from Seth Stoughton for the to-read pile.Private prison company gets rep on Windham task forceOne of the governor's new appointees to Texas' task force on "Academic Credit and Industry Recognition" at the Windham School District (which operates educational programming at the Texas Department of Criminal Justice) works for a private prison company, reported the Longview News Journal.Maybe time to tone down the 'war on cops' memeThe number of police officers killed in the line of duty in 2017 was the second lowest total in 50 years. While every death of an officer is a tragedy, this low total doesn't comport with the "war on cops" meme that's been prevalent for the last couple of years. Suicides and traffic deaths remain the more significant killers of sworn police officers.Analyzing 2017 shootings by policeThe new report from Mapping Police Violence is a must-read. By their count, 1,129 people were killed by police in America in 2017. MPV researchers "were able to identify officers in 534 cases. At least 43 had shot or killed someone before. 12 had multiple prior shootings." Also, "Most killings began with police responding to suspected non-violent offenses or cases where no crime was reported. 87 peopl[...]



Texas getting better at identifying problems at juvie facilities, but not fixing them

2018-01-02T13:14:57.088-06:00

In reaction to revelations of dysfunctional youth prisons, advocates including your correspondent have been calling to dismantle them and shift to smaller facilities located closer to the urban areas from which most of the youth first came. (Check out Grits' interview with former Dallas News reporter Brandi Grissom on the topic.) I still think that's a good idea.But we must then pay closer attention to how locals are treating juvenile offenders under their care. For example, inmates at one secure youth-treatment center in Dallas may go months without being allowed to exercise outside. Here's the lede to the Dallas News article breaking the story:Unused basketball courts at the Lyle B. MedlockYouth Treatment Center in South DallasDeath row inmates in Texas are given at least an hour a week outdoors. Hardened criminals inside California's famous San Quentin prison get 10 hours.Yet kids at a Dallas County correctional center for boys went months, sometimes more than a year, without going outdoors more than a few times.For years, the boys at the Lyle B. Medlock Youth Treatment Center in southern Dallas County were rarely allowed outdoors, according to former guards, probation officers and families of incarcerated teens.One boy said he was locked up for nearly 10 months and wasn't let outside for exercise once.That we even know about this is a testament to the creation of the Independent Ombudsman at TJJD as part of the 2007 reforms, and the expansion of their authority to include local facilities. They began inspecting local juvenile detention facilities in 2015 and immediately identified the issue, reported the DMN. By May 2016, "During a third ombudsman visit, in May 2016, the inspector again noted the lack of outdoor time and submitted a 'Request for Plan of Action' to Dallas County juvenile officials: 'What plan can be developed and implemented at Medlock that would ensure youth have access to outdoor recreational areas?'"So the mechanism to identify the problem worked, but the Ombudsman was not empowered to enforce her request to create an action plan for changing a bad policy. That didn't happen until the County Judge saw the Morning News article and sent the juvenile probation director a Nastygram, after which the policy was immediately changed.Ideally, you want government structures that identify problems in order to fix them, not to allow them to linger until some reporter catches on and embarrasses the government into changing bad policies. This reminds me of Austin's police monitor, which at its best made important recommendations for reform but had no authority to fix the problems they'd identified.At a minimum, when the Independent Ombudsman recommends this sort of policy change, local officials should be required to either implement the recommendation or formally reply to explain why they won't.The TJJD Ombudsman had similarly identified most of the problems the Dallas Morning News reported on as Brandi Grissom was on her way out the door (check out Grits' interview with her; this was Brandi's final story as Austin bureau chief). So they're giving government officials an opportunity to rectify problems long before they become front-page news, but it's just not happening.Which leads Grits to this conclusion: Legislators were successful in 2007 at creating a mechanism to identify problems at state and local facilities. But waiting until already-identified problems mushroom into front-page scandals and crises makes little sense. Someone must be empowered to fix identified problems, and to force local actors to adjust bad practices when they persist in the face of Ombudsman recommendations.[...]



Murder down in big Texas cities in 2017, violent crime up in some

2017-12-30T07:58:43.032-06:00

As the year closes out, the Brennan Center projected murder and violent crime rates for 2017 based on reporting from the nation's 30 largest cities, including six in Texas. They found that, in aggregate, both had declined from 2016 levels. Looking closer at Texas' data, complicated the story. Here are the changes in murder rates for the Texas cities in the survey:
Houston: -20.5%
San Antonio: -13.5%
Dallas: -1.7%
Austin: -27%
Fort Worth: +0.1%
El Paso: +29.4%
The increase in El Paso's murder rate was from 2.9 to 3.8 per 100,000 residents and represented an increase of 6 murders over the 2016 total.

Murders, though, are rare events occurring in relatively small numbers, which is why it's never ideal to look at one or two years in isolation. Overall, murder rates peaked in 1991 and have declined steadily ever since, with a couple of one or two year upward hiccups, as occurred in 2015 and 2016. But 2017 renewed that downward trend with what Brennan projects will be the second lowest rate for murders overall since the 1990s.

Other violent crime rates, however, rose slightly in Texas' largest cities, despite a slight overall national decline. For the same cities, here are Brennan's projections for year-over-year changes in violent-crime rates from 2016 to 2017:
Houston: +8.8%
San Antonio: +4%
Dallas: +4/8%
Austin: -7.5%
Fort Worth: +5%
El Paso: -7.8%
Now, these are single-digit increases in four of six cities following two decades of decline, so take them with a grain of salt, but it does buck the national trend, which saw violent crime decline 0.6% overall.

When you look at the data city-by-city, however, that average masks wide variation. For example, though declines in Austin and El Paso look quite good, some large cities posted even larger reductions, including: Columbus, Ohio (-12.4%), Indianapolis (-17.9%) and Washington, D.C. (-27.5%). And some quite large cities like New York (-7.4%), Detroit (-9.6%), and Boston (-9.7%) witnessed crime declines equal to or greater than any Texas jurisdiction.

What to make of this jumble? Grits honestly can't say. In most cases, imputing causation to the yearly vicissitudes of crime data (much less any partisan implications), IMO amounts to a fool's errand. I don't believe the new Houston Police Chief, Art Acevedo, can take credit for the decline in murders in his town, for example, nor do I believe he is responsible for the increase in violent crime on his watch. Crime rates measure societal trends which are bigger than the interests or actions of the government, including the police.

In fact, about the only thing you can tell from anyone's interpretation of short-term crime data at this historical moment are the hopes, aspirations, and interests of the interpreter. Crime rates have been dropping for a long time, but nobody knows whether or not we've hit the bottom. Are increases in violent crime rates in those four cities a blip, or the beginning of a longer-term bounce that will sustain over multiple years? No one but a demagogue can do aught but guess, and anybody who does so without offering lots of caveats is most certainly promoting an agenda.



More one-sided MSM reporting on Austin PD retirements

2017-12-29T09:58:54.706-06:00

Grits had earlier cited reporting by local journalists over projected retirements by Austin police officers in the wake of the city council rejecting their police-union contract as an example of the local press acting as a mouthpiece for proponents of the contract. The spin before the contract vote was that up to 300 officers could retire if the council didn't approve it, a number Chief Brian Manley amended to up-to-160 on the night of the city-council vote, after touting the higher number for weeks. 

Now, the real numbers are out and KXAN-TV has published the most misleading report yet, again without letting contract critics correct the spin. It turns out, only 33 officers are retiring this month before the new contract terms take effect, or about 5% of the highest, earlier estimates being touted in headlines and TV news stories. Reported KXAN in their lede:
The number of Austin police officers leaving the department spiked this month, nearly doubling the year’s total up to this point. 
At least 33 city police lieutenants, sergeants, detectives, corporals and officers have left the Austin Police Department this month in the wake of City Council’s decision to reject a new union contract two weeks ago. In the first 11 months of the year combined, 43 officers left the department.
So 76 officers will  retire this year, including perhaps a couple of dozen extra retiring at the end of the year because of the rejected contract. How should we judge whether this is significant? From Grits' earlier post on the topic:
So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all.
From a statistical perspective, this is entirely within normal range, with just five more retirements than in 2015. Yawn!!

Yet at KXAN, this merits the headline, "APD sees big spike in retirements after council rejects new contract"! This, to me, seems almost like intentional bias, promoting sky-is-falling arguments from one side of a public debate while ignoring both data from public sources and credible alternative voices. Could they really be this bad accidentally? I guess it's possible, but ...



Interview: Peter Neufeld, co-founder of the national Innocence Project, on prospects for state and national forensic-science reform

2017-12-27T15:04:10.843-06:00

In the December episode of the Reasonably Suspicious podcast, we published an excerpt from an interview Grits conducted with national Innocence Project co-founder Peter Neufeld. We mainly discussed forensic-science topics including the abolition of the national forensic science commission, of which he was a member, and DNA mixture controversies. You can listen to the full interview here. allowfullscreen="" frameborder="0" height="35" mozallowfullscreen="true" src="https://archive.org/embed/171205NeufeldInterview_201712" webkitallowfullscreen="true" width="500">Find a transcript of our conversation below the jump.Transcript: National Innocence Project Co-founder Peter Neufeld interviewed by Scott Henson, Policy Director at Just LibertyScott Henson: I wanted to start ... in your speech to the Texas Defender Service luncheon, you had talked about Texas having, really, I guess for the nation, sort of a surprising role in some of these innocence and forensics issues, and in particular about our Forensic Science Commission and our junk-science writ. I feel like Texans almost take these things for granted now. Can you give us, from your perspective, what that looks like from New York and from the national view?Peter Neufeld: Sure. So, nationally, during the Obama administration, there was a major effort to look at particularly the forensic issues and think that we needed a national federal solution because, quite honestly, if you have some piece of evidence tested in the laboratory in Houston, or you have it in Buffalo, New York, that you get the same results just as they would in a clinical test. If you're sending in a sample of your kid's saliva to see whether or not she has some kind of disease, you'll get the same results from both labs, well the same thing should apply in crime laboratories.And we got a lot of good things passed and introduced, a national forensic science commission that I was appointed to by the President, a standard setting body, efforts to review the way the FBI agents and other federal agents testify about forensic disciplines. It's got to be consistent with scientific principles, which became particularly relevant after they found that in 96% of the hair cases, FBI agents gave erroneous testimony, which exceeded the limits of science. All of this was moving along. On four different fronts.Then of course, we had the last election. And Jeff Sessions became the Attorney General. Last April, he abolished the commission, he abolished the effort to standardize a language with outside input from statisticians and scientists. He ended and suspended the review of the way agents testify in all other forensic disciplines, and basically he brought to a screeching halt any effort by the federal government to enhance the quality of forensic science in the criminal justice system.The responsibility fell much more to the states, and in that regard, Texas is leading the country in two ways. Texas has a Forensic Science Commission, which is outstanding, which has lots of stakeholders involved. They've sort of put petty differences aside and they all have one thing in common, they want to see only the best forensic disciplines used in cases where life and liberty are at stake. And it's remarkable. New York had a commission before Texas and it's an awful commission. It's a commission completely dominated by law enforcement and prosecutorial interest, and the truth ... and principles play a back seat. So Texas should be applauded for that.Number two, Texas got the so called junk science statute passed, which allows people to bring a writ to throw out an old conviction, which was based on what we now know as discredited forensic science. It's very important because science moves much more rapidly than law. And so many of these disciplines are disreputable. So many of these disciplines have never been validat[...]



In defense of using risk assessments at bail hearings

2017-12-27T15:00:38.128-06:00

Echoing sentiments your correspondent expressed in a segment our November Reasonably Suspicious podcast and amplifying them with additional research, three statisticians recently made the case in the New York Times that, despite allegations that some algorithms promote racially discriminatory outcomes, they remain "powerful tools for combating the capricious and biased nature of human decisions." Here's a notable excerpt:Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones. To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process. The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.Reacting to a risk-assessment algorithm used by the probation department in Broward County which was criticized in a widely cited ProPublica article, the authors insist that:It is not biased algorithms but broader societal inequalities that drive the troubling racial differences we see in Broward County and throughout the country. It is misleading and counterproductive to blame the algorithm for uncovering real statistical patterns. Ignoring these patterns would not resolve the underlying disparities.On our podcast, Amanda Marzullo and I concluded that the addition of a right to counsel for indigent defendants at bail hearings could add an additional layer of protection and a means to make an individualized case for specific defendants whose situation may be more sympathetic then their algorithmic scores. So not just risk-assessments, but risk-assessments-plus. The authors similarly conclude algorithms are only one part of a broader puzzle: they "are not a panacea for past and present discrimination. Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices."[...]



Hypothesizing causes of Dallas County Jail population decline

2017-12-27T09:02:24.125-06:00

The Dallas County Jail has dipped to its lowest population in recent memory and local officials can't agree why. Admittedly, it's hard to pin down a cause, though Grits could also make the case that the total should be even lower. See Dallas Morning News coverage from Naomi Martin.The News placed some of the blame on declining numbers of arrests by officers: "Arrests by Dallas police are down. In 2017, Dallas police made roughly 4,200 arrests per month on average, city records indicate. In 2010, when staffing levels peaked, the department made 6,343 arrests per month."However, crime is also down from 2010, so it's possible there are fewer arrests because there is less crime.Plus, the number of cases processed didn't decline with the number of arrests, particularly felony cases which account for most pretrial incarceration. From the Office of Court Administration (whose data only goes through 2016), here are the recent total felony cases added to Dallas District Courts by fiscal year:2012: 34,7792013: 35,0152014: 35,8802015: 38,6142016: 36,688By contrast, there was greater fluctuation over that period in the number of indigent felony defendants appointed a lawyer in Dallas (see OCA annual statistical supplements, criminal case activity by county for district courts):2012: 25,1822013: 37,0722014: 40,4462015: 25,3702016: 18,474Grits doesn't completely understand what's going on there - either why caseloads aren't more related to arrests (though I have some hypotheses), or why the number of appointed counsel fluctuates so much, or for that matter why it dipped so low in 2016. And I don't know whether any of these things relate directly to recent jail population declines.County officials took credit for the reduction, and it seems likely the programs they're touting had some effect:Dallas County officials took a victory lap claiming credit for the reduction. Since 2012, the county has made lowering the jail population a top priority to cut costs, for both the county and for people arrested on minor charges. They say they have added diversion programs, streamlined booking and court processes, updated software and increased the use of electronic ankle monitors.Looking at jail population reports from December 2012 and December 2017, a few things stand out. Overall, the inmate population at the Dallas County Jail was 17 percent lower in 2017 than in 2012.The category of jail inmate with the biggest numerical reduction - felony defendants detained pretrial - represented a modest statistical decline of just 17%. Much less numerous state-jail-felony inmates being held pretrial declined by 44%. And also less-numerous parole violators being held prior to a hearing declined by 57% over this period.So if felony court caseloads stayed about the same but felony pretrial defendants are the biggest source of reduction, that may speak to Dallas judges letting more people have personal bonds or low bails rather than fewer arrests being the cause, or to the streamlining efforts touted by the county. Indeed, since the last couple of  years coincided with a reduction in defendants receiving appointed counsel in Dallas, that implies the judges have played an even more important role, because the defendants are less likely to be represented.So for Grits' money, this probably represents a technocratic success - intentionally streamlining systems and doing more with less - than it does some macro-level change. The biggest part of the reductions in the police force in Dallas took place before 2017, so any resulting arrest decline would have shown up gradually over time in reduced felony caseloads, not all at once as is being suggested.[...]



Brandi Grissom Interview: TJJD/Gainesville sex abuse scandal

2017-12-25T19:37:19.649-06:00

In the December episode of the Reasonably Suspicious podcast, we included an excerpt from an interview by Grits with Brandi Grissom-Swicegood, who just left her post as Dallas Morning News Austin bureau chief to pursue a second career as a professional triathlete. Brandi's final story for the News focused on the emerging sex-assault scandal at the Texas Juvenile Justice Department's Gainesville State School (see prior Grits coverage). allowfullscreen="" frameborder="0" height="30" mozallowfullscreen="true" src="https://archive.org/embed/171129GrissomInterview" webkitallowfullscreen="true" width="500">Find a transcript of our full conversation after the jump.Transcript: Just Liberty Policy Director Scott Henson interviews Brandi Grissom, former bureau chief of the Dallas Morning News, re: the sex assault scandal at the Gainesville State School.Scott Henson: Hi. This is Scott Henson, policy director at Just Liberty and creator of the blog Grits for Breakfast. My guest today is the departing Austin bureau chief for the Dallas Morning News, Brandi Grissom, who is already better at journalism than most people will ever be at anything. But now she wants to be one of the world's best endurance athletes, and so is leaving the Fourth Estate for a career as a professional triathlete. I caught up with this remarkable woman on her way out the door to talk a little about her career as well as her final story, an expose about sex abuse and assault allegations at the Texas Juvenile Justice Department State School in Gainesville. Let's give it a listen. Hello. This is Scott Henson. I'm here today with Brandi Grissom, one of the top reporters in Texas who is now a reporter no more. She's leaving us to go become, of all amazing things, a professional triathlete, which is the most amazing, wonderful, and ridiculous thing I've heard in a really long time. Thank you very much for doing this with me.Brandi Grissom: Thanks so much for having me on. I'm excited. Scott Henson: All right. Well, let me just start by saying thank you for your amazing journalism career, and for listeners who don’t know, Brandi was the bureau chief at the Dallas Morning News until recently, Austin bureau chief at the Dallas Morning News. Before that, she was the managing editor at the Texas Tribune - wasn’t there a brief stint at the Associated Press? - and then the El Paso Times before that, and has essentially been one of the very best reporters in the Texas capital for a decade or more.Brandi Grissom: Thank you. That’s far too kind.Scott Henson: Well, it's really well-deserved, and you're going to be missed. I want to just first give you a chance to tell us, give us a few of your thoughts about leaving. What are some of your memories of doing this? Tell me what you're thinking about as you're passing the torch here.Brandi Grissom: I guess what I'm mostly thinking about is how I'm going to miss all my amazing colleagues in the press corps here in Austin. I've learned so much from so many people, and I'm going to miss them all tremendously. I think some of the people that come to mind most immediately are folks like Ross Ramsey at the Texas Tribune, who, he's just a font of knowledge about all things legislative and political, and Bob Garrett at the Dallas Morning News, who has very generously decided to take on my job in the interim, which is a blessing for the Dallas Morning News, because he is such an amazing journalist.Scott Henson: That is good news.Brandi Grissom: Yeah. Yeah, it's been great.Scott Henson: I didn’t know that.Brandi Grissom: Yeah. The bureau's in safe hands. Mostly it's the people who I'll miss the most, and I won't miss as much the early morning/late night stakeouts at the Capitol and that kind of thing, but some of the drama of it all, the [...]



'A Very Carpenter Christmas'

2017-12-24T11:24:42.554-06:00

From the intro to the latest Reasonably Suspicious podcast, apropos of Christmas Eve, please enjoy 'A Very Carpenter Christmas,' a bit of seasonal verse in honor of US v. Carpenter - the case pending before the US Supreme Court which will decide whether the government must secure a search warrant under the Fourth Amendment in order to access personal location tracking data on individuals from their cell-phone service providers:

'Twas the night before Christmas and all through the home, 
The smartphones pinged cell towers, ne'er did they roam. 
Their location was fixed there all through the night, 
Could be proven in court with no warrant in sight. 
Then what to my wondering eyes did appear, 
But Chief Justice Roberts like a red-nosed reindeer,
Leading the way for SCOTUS to hone 
A warrant requirement for tracking your phone. 
On Roberts, on Gorsuch, on Sotomayor. 
Tracking us isn't what phones are for. 
On Thomas, on Ginsburg, on Breyer, on Kagan. 
Please give Fourth Amendment fans something to cheer again. 
And clearly explain, before it goes out of sight, 
Why not being tracked by our phones is a right.

Or, here's an audio excerpt from the podcast with your correspondent reading this sure-to-be-a-classic selection:

allowfullscreen="" frameborder="0" height="35" mozallowfullscreen="true" src="https://archive.org/embed/PoemExcerpt" webkitallowfullscreen="true" width="500">

Merry Christmas, y'all.



Christmas and the Surveillance State: December Reasonably Suspicious podcast

2017-12-21T09:02:45.992-06:00

Check out the December edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. Two great interviews this month - one with reporter Brandi Grissom Swicegood about the alleged abuse and turmoil at the Gainesville State School, and another with Peter Neufeld, co-founder of the national Innocence Project, regarding forensic-science reform. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud. allowfullscreen="" frameborder="0" height="35" mozallowfullscreen="true" src="https://archive.org/embed/1712RSWithMusic" webkitallowfullscreen="true" width="500">If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:Top StoriesUS v. Carpenter: SCOTUS appears likely to require a warrant for cell-phone location data.InterviewBrandi Grissom, discussing the staff-on-youth sex scandal at the Gainesville State School.Home Court AdvantageEvaluating a sharply split decision from the Texas Court of Criminal Appeals upholding a first-degree felony drug conviction in which a police officer stole the product and laced sheetrock with less than a gram of cocaine to frame the defendant. (See prior Grits coverage.)InterviewPeter Neufeld of the national Innocence Project, discussing forensic science reform.Errors and UpdatesForensic hypnosisAustin City Council rejected police union contractDNA mixture evidenceThe Last HurrahTDCJ prison understaffing and staff safetyDeath penalty use declining: A first for Harris County in 40 yearsDallas pilot program de-escalates mental-health calls by sending medical staff instead of copsFind a full transcript of the podcast below the jump.Reasonably Suspicious Podcast, December 2017, Hosted by Scott Henson and Amanda Marzullo.Amanda Marzullo: Hi. This is Amanda Marzullo, and today I'm a little bit more unreasonably suspicious, because Scott announced that he would like to open the podcast with a holiday themed reading. I have no idea what we're getting into, so against my better judgment, Scott, go ahead and bring our listeners some holiday cheer.Scott Henson: Thanks, Mandy. I would love to. We're calling this 'A Very Carpenter Christmas'.'Twas the night before Christmas and all through the home, The smartphones pinged cell towers, ne'er did they roam. Their location was fixed there all through the night, Could be proven in court with no warrant in sight. Then what to my wondering eyes did appear, But Chief Justice Roberts like a red-nosed reindeer,Leading the way for SCOTUS to hone A warrant requirement for tracking your phone. On Roberts, on Gorsuch, on Sotomayor. Tracking us isn't what phones are for. On Thomas, on Ginsburg, on Breyer, on Kagan. Please give Fourth Amendment fans something to cheer again. And clearly explain, before it goes out of sight, Why not being tracked by our phones is a right.Amanda Marzullo: Scott. You know you're ruining Christmas for all of us.Scott Henson: Ruining it? Come on.Amanda Marzullo: People sitting down, are they supposed to really think about government surveillance as they have a yuletide celebration?Scott Henson: Hey, Christmas is all about surveillance when you really think about it. How do you think Santa compiles his naughty list?Amanda Marzullo: Well that's Elf on the Shelf, Scott, I don't know what you're talking about.Scott Henson: He's conspiring with Big Brother, there's really no other explanation. There's a whole Christmas component to the surveillance state apparatus that really doesn't get talked about is all I'm saying. And by the way, Rudolph the reindeer is definitely a Cyborg [...]



Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

2017-12-17T09:32:25.974-06:00

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:Forensic commission can't address 'forensic hypnosis'First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.Maybe they'll listen if they Rangers tell 'emGovernor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.Did TDCJ understaffing allow rape of prison teacher?A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.Coverup at TDCJ?The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.Executing non-killersSomething about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.Paying for public defenders would reduce incarceration costsLong-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public de[...]



Journalists failing to call out official lies in Austin police contract debate

2017-12-16T11:07:35.091-06:00

Local, mainstream media coverage of the Austin police union contract - which was rejected Wednesday night after a dramatic, 8-hour special-called city-council meeting - has been disturbingly bad. People whom I've considered good reporters on other topics have written pablum-filled junk on this one. For the most part, journalists appeared to go out of their way to avoid reporting factual information when it was provided by advocates or movement leaders, and instead chose to report spin and outright falsehoods from the police union and (to a slightly lesser extent) police department management.With the exception of Michael Barajas at the Texas Observer, most reporters leading up to the council vote portrayed opposition to the contract as coming from only a handful of critics, often suggesting Austin Justice Coalition's Chas Moore was the sole, vocal opponent.The Austin Statesman at one point estimated that "several" activists opposed the contract, and after the council vote, a local TV station said "dozens of community members" opposed it. In reality 20 different organizations signed on against it - including Travis County Democratic Party precinct chairs voting unanimously to recommend rejecting it - and more than 220 people signed up to speak against the contract Wednesday night, with 54 police officers and their family members signed up for it, the Mayor announced at end of the meeting. (The total actually speaking was lower on both sides in the end because many people donated their time to others or had to leave before their name was called.)Beyond simply downplaying the size of the movement, a lot of false information has been  propagated because reporters simply accept official sources uncritically and do not seek out alternative sources or views. Sometimes these official sources lie, but the reporters aren't performing even the most basic legwork to fact check those falsehoods.To take the most immediate example, Chief Brian Manley and the police union have been saying - and the Statesman repeated the line as the top news about the contract - that up to 300 veteran officers could retire if the contract was rejected. These were official falsehoods being promoted as a scare tactic.And now that the contract has been rejected? Reported KXAN-TV, police union president Ken Casaday said, “We’re expecting somewhere between 25 and 50 to leave.” So between 1/12 and 1/6 of the number he was estimating a week before. While KXAN reported the new, much smaller estimate, the headline did not not say, "Far fewer officers will retire than expected." Instead, they doubled down on the original falsehood with the scary headline, "Some APD officers already putting in for retirement after contract was stalled." Not one media outlet has called out police management or union officials on their earlier misrepresentations. Instead, they're collaborating in a spin campaign.So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all. Austin cops with enough years in to make them eligible for retirement make upwards of $120K per year, including overtime - among the highest paid in the nation. There aren't other jobs, anywhere, where they can make that much, so most will stay put.Reporters should aspire to be more th[...]



Uncharted territory: Rejected police union contract leaves many open questions

2017-12-15T18:08:55.819-06:00

The Austin City Council last night unanimously voted against accepting a police-union contract - one that took almost 8 months to negotiate and was approved by 85% of union members - after more than 150 reform supporters, including your correspondent, spoke at a special called meeting to oppose the current version and demand accountability reforms. (More than 220 people signed up to speak against the contract, but the hearing lasted seven hours, late into the evening, and many people had to go home.) See coverage from:Austin StatesmanAustin ChronicleTexas ObserverKVUE-TVFox7-NewsThese accounts entirely underestimate the import of this vote. Austin's City Council hasn't voted against a union-ratified police contract, ever. Nor have any other American city rejected a union contract on accountability grounds, as far as I can tell. (In Portland, when civil rights advocates protested their contract, they were pepper sprayed and sent on their way.)Crowd who stayed for the vote at end of a 7-hour meetingThe vote creates, for the first time in two decades, an opportunity to improve police oversight in Austin, which was ineffective at best and a public embarrassment at worst. None of the local coverage has effectively plumbed the depths of the issues at stake, typically portraying one young activist - the Austin Justice Coalition's Chas Moore - as some lone-wolf critic instead of the voice of a massive, city-wide accountability movement.Local advocates led by the Austin Justice Coalition (conflict alert: my wife Kathy Mitchell was among the campaign's principle organizers) attended every negotiation session, researched the issues thoroughly before engaging, organized their asses off in dozens of various forums, meetings, and events, and arrived at the denouement last night loaded for bear. The Austin Police Association and city management presented a united front in defense of the contract, but struggled to defend the pricetag -- more than $80 million over five years to give raises and bonuses to a police force that's already the highest paid in the state. A core group of council members clearly were disturbed by the lack of accountability measures demanded by the community. (AJC had proposed eight measures; one was fully implemented, one partially, the others were ignored.) The entire council was unhappy that the exorbitant cost of the contract would squeeze out spending in all other areas of the budget for the next five years.That mix of advocates' frustration with police abuse, coupled with Council's frustration at having so little money to keep the pools open or even add new police officers, tipped the vote away from the deal. The union had said that if the council rejected the contract they would not come back to the negotiating table for a year. But there's too much money at stake so I don't see that happening. Their members would lose a lot of goodies, including sweet overtime deals for court appearances. The council's motion last night gave city negotiators unto March 22, 2018 to come back with an amended agreement that was cheaper and included more accountability reforms. And with that unanimous vote, the city, the union, and police reformers move into uncharted territory.[...]



A brief primer on forensic hypnosis

2017-12-13T15:09:23.693-06:00

In the November Reasonably Suspicious podcast, my colleague Amanda Marzullo and I discussed a capital case out of Dallas - Ex Parte Flores - in which the Dallas PD used hypnosis on the primary witness, who ultimately switched her story. She at first said a long-haired white man was the perpetrator before identifying a short-haired Hispanic man (Mr. Flores) at trial.On the podcast, we marveled that DPD had access to an on-staff hypnotist, wondering whether DPD might also consult Tarot card experts or palm readers? But Grits underestimated the level of official status that "forensic hypnosis" has achieved in Texas, by quite a bit! I'm putting these links up mostly for my own purposes, but thought Grits readers may also be interested, so here you go:For starters, to be clear, most states (28) do not allow hypnosis-influenced testimony to be admitted into evidence at all. Of the states that do, Texas has over the years had one of the more robust programs. The Texas Court of Criminal Appeals approved the use of hypnosis in a case called Zani v. State from 1988, the year after  the Texas Legislature via SB 992 ordered what was then the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) to create an "Investigative Hypnosis certificate." (See a 2015 synopsis of their 50-hour training course, and here's the relevant section of the Occupations Code.)The CCA reaffirmed the use of hypnotically induced testimony in a 2004 case, State v. Medrano.The best journalism on this topic that your correspondent has seen came from Andy East at Reporting Texas in December 2014, in a story I'd missed when it came out. According to Mr. East:Texas and 21 other states allow court testimony by witnesses who previously were hypnotized to enhance their memories, according to a study by Steven Lynn, a professor of psychology at Binghamton University in New York. The Texas Rangers have used hypnosis 66 times since 2009, according to the state Department of Public Safety. Most law enforcement agencies in Texas don’t keep statistics on hypnosis.Further:Investigative hypnotists in Texas must be certified by the Texas Commission on Law Enforcement. That requires taking a 50-hour course and passing an exam. Since licensing was mandated in 1987, commission records show that 858 law enforcement officers have been certified . Four officers have been certified in the past two years. In October 2013, the commission began requiring licensed investigative hypnotists to take a refresher course every two years.According to an article by a former DPS trooper and prominent forensic hypnotist (touting the "Texas model" and outlining a "Road Map to Admissibility" for hypnotically enhanced witness testimony), some 80 police officers participated in the first TCLEOSE training once the official certification was created.There is actually a Texas Association of Investigative Hypnosis, and regrettably we just missed their annual conference! That would have been a hoot. Here's a website of a prominent practitioner and former DPS trooper.American Public Media in 2016 took on the story from a national perspective. They warned that:Especially if done poorly, the process - basically a means of trying to induce a more focused state of mind — can plant memories or skew existing memories. It can also make witnesses or victims more certain of what they saw, even if the recollections turn out to be false. Today, hypnosis is a rare feature in police work and even rarer in the courtroom, partly because so many courts have ruled "hypnotically induced" testimony inadmissibl[...]



TX DPS diverting focus to immigration enforcement, and other stories

2017-12-12T09:25:48.140-06:00

Grits has been neglecting this channel a bit - family obligations have kept me as busy as a one-legged man in an ass kicking contest. But here are a few odds and ends that merit readers' attention while mine is focused elsewhere:DPS now engaging in immigration enforcementTexas DPS is calling the Border Patrol to the scene of traffic stops to pick up suspected illegal immigrants, reported The Intercept, which tracked what happened to the families in several of these cases. This amounts to explicitly diverting state-level law enforcement resources to fulfill a federal immigration function, reducing resources available to fight crime.Dallas pilots non-cop-led teams on mental-health callsDallas is launching a pilot program to send a team led by medical personnel instead of  police officers to most mental health calls. "Under the pilot program, three people would be dispatched to each mental health call: a paramedic, an officer and a behavioral health professional."Suspending drivers licenses for debt a policy flopTexas is one of 43 states that suspend drivers licenses for unpaid court debts, reported the Marshall Project. Your correspondent is especially excited to see how the new policy in California rolls out, where the CA Legislature ended license-suspensions for nonpayment earlier this year. IMO Texas should move in that direction.MSM belatedly notices bipartisan #cjreform in TexasThe Houston Chronicle has discovered that the Right on Crime campaign at the Texas Public Policy Foundation exists, but thinks they've been "quiet" until now. Happy to see RoC getting in-state attention. But they've hardly been quiet, even if the Texas MSM hasn't been paying attention.Law-of-parties debate heating upDebates over the "law of parties" are heating up as a result of the Jeff-Wood capital-murder case, with the prosecutor from the case calling for his sentence to be commuted, reported the Texas Tribune. The law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. American law is an outlier on this one.Jury selection critiquesHouston law prof and Grits contributing writer Sandra Guerra Thompson has posted an older article on SSRN critiquing jury selection procedures in the context of Miller El v. Texas. Meanwhile, Brittany Deitch of Harvard Law has a new article out critiquing jury selection procedures arguing that "that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power."'Sources of Contamination in Lineup Identifications'In our November Reasonably Suspicious podcast, Amanda Marzullo and I discussed a capital case out of Dallas in which an eyewitness was subjected to hypnosis, after which she identified a short-haired Latino defendant as the perpetrator of a crime when she'd originally said a long-haired white man did it. Grits couldn't help but think of that case when reading this short article on "Sources of Contamination in Lineup Identifications." It was almost a textbook violation of best practices designed to prevent false identifications.Cops' views on bodycamsWhat do police officers think about when they should and shouldn't be re[...]



CCA: Parole board cannot be made to follow statutes

2017-12-04T13:46:32.938-06:00

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.



What next after TJJD's Gainesville scandal?

2017-12-01T14:40:23.706-06:00

In the wake of recent sex-abuse allegations at the Gainesville State School, the Dallas Morning News editorial board recommended closing Texas' five remaining youth prisons. But they didn't really address what should happen with the inmates there or how the juvenile-justice system should be structured in the aftermath of youth prison closures.For more detailed thoughts on that, check out this GFB post from several days after the story broke anticipating that recommendation and also what might lie beyond.In that vein, yesterday, four liberal groups called for the creation of a joint House-Senate legislative committee to create a plan to close Texas' remaining youth prisons and utilizing alternatives to secure lockups including TJJD halfway houses located closer to urban areas. Grits has no problem with the policies they're suggesting but am not certain a joint-legislative committee is the way to go. For starters, that would require that Dan Patrick and Joe Straus to both assent, and presently I doubt those men could agree on what to order for breakfast. Moreover, it feels to me like it's already fairly obvious what needs to be done.After the Texas Youth Commission sex scandals put the agency into conservatorship in 2007, the Legislature commissioned a blue-ribbon panel to recommend how to transform the system. They suggested shifting to the "Missouri model" where youth offenders are housed in smaller facilities (fewer than 48 beds) closer to urban areas where more treatment and mental health services are available. That goal has been partially achieved, but the Gainesville episode shows that youth left in those few remaining large facilities are still at risk.All this to say, the state has a long history here and most people involved understand in broad strokes what needs to be done. State leaders just need to muster the political will, and money, to finish the job.MORE/TEASER: This week Grits interviewed Brandi Grissom-Swicegood on the Gainesville State School scandals for the December episode of our Reasonably Suspicious podcast. We discussed similarities and differences to the TYC episode and where state leaders may go from here. As veterans of the 2007 episode, we shared the same sense of deja vu, and exasperation, that such similar problems had recurred. And we talked about how to prevent such episodes in the future instead of merely document and prosecute them after the fact. Look for an excerpt of our conversation in the main Reasonably Suspicious podcast for December, then Grits will post the full interview online soon thereafter. Brandi just left her job as Austin Bureau Chief of the Dallas Morning News to pursue a career as a professional triathlete, and this was her last story. So it was fun to get to interview her on her way out as she reflected on her career reporting on the capitol, in addition to discussing all this juvenile justice stuff. Coming soon! (And thanks for doing that, Brandi, that was a lot of fun.)[...]



Police unions, the media, and me ... and other stories

2017-11-30T10:30:08.084-06:00

Grits fell ill at the end of the holiday weekend, am only now really back on my feet, and find myself in a desperate need to clear my browser tabs. So, y'all get a roundup of all the stuff I don't have time to blog about right now.Police officers indicted more often, but seldom convicted after shootingsMore police officers in Texas are being charged after questionable shootings, but prosecutors who were able to convince grand juries to indict have been less successful at securing convictions at trial, reported Tasha Tsiaperas the Dallas Morning News (who has a really cool, bond-villain-type name!). In related news, Grits contributing writer Eva Ruth Moravec had a feature in the Houston Chronicle about a Freeport police officer acquitted by a Brazoria County jury for shooting his unarmed neighbor in the next apartment. It was as negligent a situation as one could imagine, so maybe civil court is still an option: The cop apparently slept with a loaded gun in his bed (and in this case, his finger on the trigger, safety off) and fired it through his headboard into the next door apartment. Attn: Texas Monthly, this is mandatory Bum Steer material.Police unions, the media, and meMost local media coverage of the Austin police contract has been dismissive of the push by the Austin Justice Coalition and their growing list of allies to get the city council to vote "no." This, despite opposition to the contract from hundreds of signators, more than a dozen groups, and even though, in a staunchly Democratic county, D precinct chairs unanimously voted for a resolution urging city council to kill the deal. Currently the vote is scheduled for December 14th. At the Texas Observer, Michael Barajas has a feature explaining more fully "How the expiration of Austin's police union contract could be a rare opportunity for reform." Former CLEAT mugwump and long-time police-union leader Ron DeLord, who was lead negotiator for the Austin Police Association on the contract, complained on Twitter that Barajas didn't talk to him. So I suggested DeLord do a podcast interview to air his views, and he agreed(!). I hope y'all are looking forward to that as much as I am. Mainly I want to talk to him about his books: See Grits' discussion of his latest one, and also the opening segment of our August Reasonably Suspicious podcast discussing his remarkably accurate prediction of Texas' police-pension crisis, which was a contentious legislative imbroglio this year resulting in outcomes with which no one is happy, but which brokered an uneasy, temporary truce among the parties. If the economy holds.Evaluating police bodycamsCoupla items here: A new study found bodycams reduced use of force episodes at the Las Vegas PD while providing quality evidence that supported criminal convictions mostly of defendants, not cops. But many advocates, your correspondent included, believe the laws limiting transparency around footage reduce the accountability benefits. Supporting that claim, Nick Selby wrote on The Crime Report that, "In October of this year, the biggest-ever randomized study of body cameras showed no measurable reduction in complaints or use of force by officers in Washington, D.C." So the jury's still out on whether this will turn out to be an important accountability measure, as they were originally pitched in the hyped aftermath of the Ferguson protests.With shortfall looming, a way to reduce DPS crime-lab volumePlano PD is testing a device that can tell whether DNA exis[...]



Looking through the Glass Door at TJJD employee complaints

2017-12-01T20:05:21.092-06:00

In the wake of the new Texas Juvenile Justice Department sex scandal out of the Gainesville State School, and reports by the Dallas News of absurdly high turnover rates and abuse of inmates by staff, it occurred to me to check the service "Glass Door" to see if current or former TJJD employees had ever posted there. Indeed, they had!Glass Door is a service for people looking for jobs. It allows current and former employees to provide input on anonymously on what it's really like to work for an employer. Mostly it's used in private sector contexts, but it turned out there was state agency information, too.The main positives about the agency were that pay and especially benefits were good for the jurisdiction. But the various negative critiques mounted up. Here's a short compilation of some of the more negative comments made by TJJD employers about their jobs:very dangerous environment with little to no troop support.we should have been paid more for the crap we had to deal withUnsafe environment to work in, Messy Cliques, No appreciation shown to the employees.Morale is the lowest in seven years.The stress level can often run high. The turn-over rate tends to be high so there are some issues involved with maintaining veteran, well-trained staff. These positions are not for the faint of heart or those who can be easily manipulated.Short staffed. Mandatory overtime that you're not paid for.The workplace has a negative culture and the state is constantly threatening to close down the facilities.Safety is at risk.Unsafe work environment. Management is clueless and uncaring. Employees are treated as pawns to be used for coverage. Poor attendance by coworkers is not addressed and employees often have to work 12 hour to 16 hour shifts as you cant leave unless management can find a replacement for you at the end of your shift. This is the most racist place I have ever seen. It is full of hateful and negative teachers and administrators , which they likely keep around. Most if them call the kids trash and have no real desire to help them. Your treatment is based on how well you suck up or sleep around.Expectations are high and those that genuinely care for the youth can find themselves doing the work of two or three. One employee offers this disgruntled assessment:ProsIn this company there aren't any pros, unless you are in with the "in" crowd, the morale at the company is very low and that's from management down. As a clerk, there is no room for improvement, no training. There are basically no pros for working for this agency. ConsA lot of work for one person, no career ladder, no room for improvement, self taught.Ouch!See a related Grits post: "New TJJD sex-abuse allegations recall similar but different '07 scandals."[...]



Keep expectations realistic vis a vis 'reformer' DAs

2017-11-30T07:19:43.135-06:00

In the world of criminal-justice reform, because there are so many different participants and levels of government involved in how the system operates, reformers must keep available a full tool chest of possible approaches, selecting each one to accomplish a particular task in a given situation.Nueces County DA Mark GonzalezFor example, if you want to eliminate money bail, maybe litigation is the only option. OTOH, if one wants to close prisons, that must be done through the Legislature, and in particular the House Appropriations and Senate Finance Committees.  Want to oppose local jail expansion? You'll need to lobby the county commissioners court. Or if one wants fewer people shot by police, the policies governing use of force are controlled by unelected administrators at local departments, with only indirect input from city managers or city councils. Each of these issues requires reformers to adopt a tailored approach if they hope to succeed; there's no one tactic which will transform the entire process.Lately, it has become fashionable to claim that prosecutors are primarily or at least disproportionately to blame for mass incarceration, a view to which Grits only partially subscribes. But the principle champions of this critique have not developed viable visions for how prosecutors' offices might operate in the alternative. And so, the go-to move in the near term has been to run "reformer" DA candidates against incumbents, hoping a change at the top will trickle down throughout the agency.However, using the electoral process to oust a DA is an expensive and difficult tool to employ among the array of possible options, and in many cases it may have limited practical utility. In some cases it can easily backfire. How can one tell if it's worth it?Indeed, is it worth it at all? In a post responding to Josie Duffy Rice titled "'The Myth of the Progressive Prosecutor,'" Grits recently argued that, "Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it."That flies in the face of expectations of reform supporters who back DA challenger candidates. Rice's colleague, Carimah Townes, recently examined the brief tenure of Nueces County DA Mark Gonzalez through the lens of a Disappointed Reformer, but it's unclear what exactly he was expected to do which would have pleased his critics.Sure, Gonzalez could simply stop taking drug cases or use his discretion more radically to reduce local jail populations and prison commitments. But to expect him to do so is to expect things he never promised during his campaign.Which brings us to what he did campaign on, and what reformers may reasonably expect from successful electoral strategies, particularly in the South. (Caveat: The new DA in Philadelphia appears to have a more visionary agenda, and I'm interested to see how he fares and exactly what he does differently from his predecessors. But none of our "reformer" Texas DAs promised anything close to his campaign platform.)During the election, Gonzalez touted his own background as a proud defense attorney and Mexican-American motorcycle enthusiast. In addition, the remarkable "Not Guilty" tattoo across his chest gave voters an impression he would approach the job with a [...]



Spotlight on ineffective assistance: Barriers to remedies

2017-11-23T09:36:47.654-06:00

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen: allowfullscreen="" frameborder="0" height="35" mozallowfullscreen="true" src="https://archive.org/embed/1711TwoIneffectiveAssistanceSegments" webkitallowfullscreen="true" width="500">Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.Transcript: Reasonably Suspicious Podcast, November 2017, featuring Just Liberty policy director Scott Henson and Mandy Marzullo, executive director of the Texas Defender Service.Ineffective Assistance of Counsel: Front and Back-End SolutionsScott Henson: Up next the House Criminal Jurisprudence Committee has an interim charge to examine instances of prosecutorial misconduct and ineffective assistance of defense counsel.When this came out, the media focused mostly on the notion of the legislature confronting prosecutorial misconduct. But for defendants, the ineffective assistance piece is just as important. There are some structural barriers for defendants to receive relief in those cases. Mandy, why won't you deal out a few tarot cards for us and see if you can predict what structural problems the committee might confront when it comes to ineffective assistance.Mandy Marzullo: Oh, God. I think on the front end, the committee unfortunately is going to have to confront just the underfunding of indigent defense in Texas. By and large, attorneys that represent indigent defendants in Texas are handling extraordinary caseloads; like several times the number of cases that they should be taking according to caseload studies that have been performed for decades, at this point. That does have real repercussions. If you aren't able to properly investigate your case, your client is more likely to plead [...]