Odds and ends: Forensics, budgets and cell-phone location data

A few odds and ends, just to clear my browser tabs:

New Harris County forensic facility under construction
Harris County is breaking ground on a new forensics facility. Too bad they couldn't figure out how to do something jointly with the city.

Dispatch from the Body Farm
How maggots help solve crime, from National Geographic.

'Texas criminal justice spending driven largely by elderly inmates'
This will be even more true every year for the foreseeable future.

Book 'em
How the feds took down Texas' biggest illegal sports book run out of Dallas.

Tackling high prison phone costs
The feds have floated a plan to aggressively limit prison phone calls. They should include video visitation when they make the rules.

Smart phone location data leakage
News Flash: Your smart phone leaks location data everywhere, to everyone, so says Ars Technica.

Habeas writs highlight withheld evidence in capital case, drug prosecution shortfalls

Harris County isn't the only place where folks are coerced into plea deals for drug offenses when the crime lab report later reveals they did not, in fact, possess any drugs. Yesterday's Texas Court of Criminal Appeals hand down list includes another such a case out of Wharton County. MORE: A reader reminds me the Statesman covered this topic back in April, detailing numerous, similar cases around the state.

Also on yesterday's hand down list: The CCA granted a habeas writ from capital murder defendant Alfred Brown out of Harris County, finding that "the State withheld evidence that was both favorable and material to applicant's case in violation of Brady" in his 2005 capital murder trial. The Harris DA's office under the late Mike Anderson agreed the prosecutor withheld evidence. Lisa Falkenberg, who has been covering the case at the Houston Chronicle, reports that the prosecutor in question was Dan Rizzo, who says the concealed evidence supporting Brown's alibi was an honest mistake. I'm sure then, in the state bar's eyes, that will mean "no harm [except to Alfred Brown], no foul."

Is DA's office right place for digital forensics?

Grits can't decide whether or not I approve of the Dallas DA creating a digital forensics division. Certainly, big-city law enforcement needs such capabilities. But I generally believe forensic analysis should be divorced from law enforcement, which to my mind includes the DA's office just as much as the police department.

Perhaps one could argue that digital forensics are different - that the requirements for objectivity when searching someone's phone or computer for evidence differ from the hard sciences. OTOH, the day accusations arise of evidence tampering, the fact that the forensic analyst is situated in the prosecutor's office may become a problem. Also, a DA's office isn't set up to manage an evidence room - which would be required to maintain a legitimate chain of custody for seized electronic items - the way police departments and crime labs routinely do. There are a lot of ways this could get screwed up.

I can't think of any other forensics activities based out of the DA's office, maybe that's for a reason! I'm not certain at first blush this is the right location for such a division and wonder about how the decision was made. In any event, I'd like to hear that debate. Offer your own opinions in the comments on the pros and cons of putting digital forensics under prosecutors' direct control.

MORE: Sky Chadde at the Dallas Observer's Unfair Park blog followed up with a post riffing on these themes.

Will shifting national debate on pot translate into Texas legislation in 2015?

For the most part, the Texas Legislature typically doesn't care much what happens in other states. But legalizing recreational marijuana use in Colorado and Washington definitely changed the terms of debate. And this election cycle, despite a GOP sweep in competitive House and Senate races, two more states and the District of Columbia joined the list of jurisdictions approving recreational use. From Ilya Somin at the Volokh Conspiracy:

The 2014 election was a successful for marijuana legalization. Referendum initiatives legalizing recreational marijuana passed in Alaska, Oregon, and the District of Columbia. Florida’s legalization amendment (which was limited to medical marijuana) failed, but only because victory required a 60% supermajority (it got 57% percent). A medical marijuana initiative did pass in the Pacific island territory of Guam.

Coming on the heels of the legalization of marijuana in Colorado and Washington in 2012, this is a further sign of pro-legalization momentum, and perhaps of dissatisfaction with the War on Drugs more generally – even among some conservatives.

Nationally, some pot-legalization strategists discouraged ballot initiatives on the topic in 2014, fearing the sort of red-voter swamping of the electorate that did indeed occur yesterday. 2016 is supposed to be the real tipping point with several states including California in play, according to the national groups' playbook; this year was too risky. But such fears didn't come to fruition in Oregon, Alaska, or D.C., where recreational use will soon be legal.

Sometimes experts can outsmart themselves. In my experience, ideological conservatives aren't a barrier to drug policy reform, or shouldn't be. Indeed, pitched correctly, small government conservatives are natural allies for those who want to treat drug abuse as a medical problem instead of a criminal one and reduce the footprint of the justice system.

Texas doesn't have initiative and referendum; any reform legislation here must pass both chambers at the Legislature and be signed by Greg Abbott. So change here can't happen on the Colorado, Washington, or Oregon model; it can't happen at the ballot box. Instead, incrementalism is the order of the day.

Grits continues to believe that, while the Texas Legislature will not outright legalize pot in 2015,  important constituencies now support (or at least don't strongly oppose) reducing penalties for low-level pot possession from a Class B to a Class C misdemeanor - the equivalent of a traffic ticket. Some of the biggest beneficiaries of such a policy would be county governments which don't want to raise taxes to pay for jail space and attorneys for indigent pot smokers and covet a new Class C revenue stream. (Some of those same constituencies, it should be added, also support reducing all charges for driving with an invalid license from a B to a C - the Driver Responsibility surcharge has made the numbers overwhelming.)

There has been talk of making low-level pot possession a civil violation instead of a criminal penalty. But it's unclear to me how that would work under Texas' legal framework, which couches all sorts of regulations as criminal offenses that would be civil violations in other states (for example, that's how we get 11 felonies involving oysters). Maybe they can figure out an angle but it's hard to see how they shoehorn it in with existing enforcement mechanisms. The only civil-penalty equivalent I can think of are red-light camera tickets and they have all sorts of enforcement problems.

Either way, there's a coalition to be had on reducing marijuana penalties between local tax hawks, small-government conservatives and anti-drug war liberals that could potentially pass a bill which  reduced arrests, jail time, indigent defense costs, and provided real, county-level property tax relief. And the large number of new faces in both chambers provides opportunities for new conversations and perhaps even new coalitions over the next session or two.

I'd be surprised if a bill to "legalize" pot even gets a hearing in 2015. Legislation to ratchet down penalties for low-level possession, on the other hand, conceivably could pass if the leadership would  let members vote on it.

Changing of guard among Texas prosecutors: Craig Watkins, Susan Reed fall

While Texas' MSM seemed in a veritable frenzy over the non-race for governor, the three races I was most interested in all turned out to be pretty close, with two upsets out of three District Attorneys races in Texas' three largest cities. These races have important implications for criminal justice politics overall in Texas.

In Harris County, incumbent Devon Anderson eked out a victory over Democrat Kim Ogg, who blundered badly in the home stretch. But in Dallas, ticket splitting Democrats handed incumbent Craig Watkins a bitter loss to a party-switching moderate, Judge Susan Hawk, while in Bexar County, Democrat Nico LaHood bought his way to victory with outlandish backing from a Corpus Christi trial lawyer, allowing LaHood to flood the local TV with commercials. LaHood's opponent Susan Reed (and many others I talked to) believed that voters would turn their noses up in disdain at one donor attempting to buy the DA's race, but I never thought that. The money bought TV ads, which work. Who donates money is insider baseball and voters don't really care. LaHood won 52-48.

Looking at these races, the DA's race in Harris County appeared to be more or less driven by general partisan patterns, while the Dallas and Bexar races were more driven by local dynamics - Watkins' ceaseless blunders and tone-deaf pronouncements in Dallas and LaHood getting $600K+ to go after a feared but not particularly well-liked incumbent on television. That makes sense. Harris is too big for candidates to make much of a dent buying TV time (and to the extent media mattered, Anderson outspent Ogg on what TV there was). But LaHood could buy all the TV he wanted and Craig Watkins generated his own bad press. So I wouldn't read too much into either upset in terms of partisan implications. At the margins in the middle where swing voters made their choices, these were local voters making decisions based on local issues about who they wanted as the county's prosecutor. And, it should be mentioned, in all three races the candidate who raised and spent the most money won.

Reed's departure, though, does mark the end of an era. There was a time not long ago when she, Bill Hill in Dallas and Chuck Rosenthal in Houston formed a sort of unholy political triumvirate among big-city Texas prosecutors who promoted a highly politicized version of "tuff on crime," with DA John Bradley from Williamson County (like Rosenthal, an acolyte of former Harris DA Johnny Holmes) operating as their attack dog at the Lege along with their own lobbyists to portray tuff-on-crime demagoguery as reflective of the views of every prosecutor.

Craig Watkins began to bust up that cabal when he defeated Bill Hill in 2006, nearly by accident. Then Chuck Rosenthal imploded in a a writhing morass of drug abuse and racist emails that forced his resignation, with his heir apparent losing in the GOP primary and many of the old guard prosecutors leaving the office. John Bradley's defeat in 2012 eliminated a politically influential spokesman and dealt a symbolic blow to hard-line prosecutors, leaving Susan Reed in San Antonio, Abel Reyna in Waco (no Dem opponent yesterday but a write-in candidate got 16%), and Matt Bingham in Tyler as the remaining standard bearers for extremism among elected prosecutors' ranks, though Bingham and Reyna don't really engage at the Legislature. So from a political perspective, Reed's ouster and replacement by a Democrat marks the final element in an important historical transition, a changing of the guard, if you will, among the state's elected prosecutors, whose ranks will look much different in January than today.

Just to mention it, if it weren't for LaHood's upset victory in Bexar, the DAs in Texas' five largest counties (Harris, Dallas, Bexar, Tarrant, and Travis) would all be women. The new R Tarrant DA is Sharen Wilson, and disgraced lame duck Rosemary Lehmberg is DA in Travis County. Still, that's four out of five, which is pretty impressive. (Heck, even John Bradley was replaced by a woman.) The landscape among elected prosecutors in Texas has changed dramatically since the turn of the century, really since 2006, in ways nobody could have foreseen.

MORE: From an email I sent to a friend regarding the implications of these three prosecutor races:

Arguably, one of the lessons from Craig Watkins' epic fall from grace is that prosecutors first and foremost should focus on running their own shop as cleanly, honorably, and effectively as possible instead of seeking to use it as a base from which to project political power. That's especially true for new DAs running big offices, which really includes not just Hawk and LaHood but also Anderson and Wilson, who all have four years to show they can actually perform the day-to-day duties of the office without embarrassing themselves or their constituents. Lehmberg's a long-timer (first assistant before she was DA), but she's politically toxic and on her way out. Leaving her aside (and please, let's), that leaves Jaime Esparza of El Paso as the eminence gris among elected DAs from larger counties. That's a big change from a decade or so ago when Rosenthal and Hill were the principle prosecutor shot callers in Texas. Big picture, the hard-liners among big-city Texas prosecutors have been rooted out and it will be a while before the newbies have the same sort of clout as the people they ousted.

AND MORE: A commenter rightly adds, "Let's not forget the changing of the guard in Hidalgo County: Rene Guerra lost the primary election after reigning as DA for a staggering 32 years. (Of course, Cameron County got a new DA after the former DA was convicted of federal crimes in the Abel Limas corruption saga.)" Exactly right; there's been more guard changing than just in this general election - really quite remarkable, taken as a whole.

Inmate families rally for criminal justice reform

The Texas Inmate Families Association, Texas CURE, and Texas Voices are holding a rally at the state capitol on Friday afternoon. A friend asked me to pass the word along to Grits readers, so here you go:

Who: TIFA, Texas Voices for Reason and Justice, TX CURE, friends, families, and YOU

What: Texas Families for Justice Rally

When: Friday, Nov. 7th at 1:00PM

Where: South steps of Texas Capitol

Why: This rally will bring those directly affected by the criminal justice system out of the shadows, and allow their voices to be heard. It will allow the opportunity to stand in solidarity with families and communities throughout Texas in saying that incarceration impacts everyone. With this recognition of the impact on our families and communities, criminal justice policies can be created that truly support families, reduce barriers to reentry, and ensure the well-being of all Texans–even those behind the walls.

Did you know that the rock-stone to build the Capitol was mined by incarcerated people, and the furniture inside the building was made by incarcerated people?  We have a lot of work to do to create more just policies for currently and formerly incarcerated people, and we hope that you will come out to the Texas Families for Justice Rally on Friday, November 7th to add your voice to the call for criminal justice reform.

Video visitation in jails: Despicable new funding stream makes jails less safe

When video visitation was first introduced in county jails, Grits supported it. It was pitched as a supplement to face to face visitation, a way someone could communicate with a loved one (or client) from a distance when for whatever reason they couldn't come visit them in person. Proponents insisted face to face visitation would still be possible.

Now, that do-gooder pretense has been abandoned. Increasingly, county jails shifting to video visitation are eliminating face to face visits entirely - as is happening in Bastrop County this month and Travis County did last year - so a private vendor can charge families for the privilege of communicating with jail inmates. With 20/20 hindsight, it's clear I wasn't cynical enough, failing to foresee that counties and companies would seek to monetize families' visits with incarcerated loved ones the same way that they gouged them on phone calls before the FCC reined them in.

Here's a brief fact sheet on video visitation from the Texas Criminal Justice Coalition adapted from a longer report (pdf) they published last month along with the group Grassroots Leadership. (I'd linked to coverage from the Texas Observer when the report first came out, but apparently not the underlying document.) Check out TCJC's observations concerning Travis County's video visitation program below the jump.

Testing Houston PDs rape kit backlog: Rest of state should follow suit

The Texas Observer's Emily DePrang last month had a thoughtful, lengthy article (Oct. 8) about Houston PD's effort to test thousands of backlogged rape kits and assessing related efforts in other jurisdictions. Here are a few notable excerpts:

In 2011, lawmakers passed a bill by state Sen. Wendy Davis requiring every law enforcement agency to tally and report its untested sexual assault kits. The bill also mandated that law enforcement agencies submit kits to a crime lab within 30 days. At the time, the Department of Public Safety (DPS) estimated up to 20,000 kits like Pearl’s might be warehoused all over the state. Now, that number is looking low. As of July, only 146 of Texas’s 2,647 law enforcement agencies had reported their totals, but the statewide count of untested rape kits was already nearly 19,000. 

That includes the major cities—Dallas (4,144), San Antonio (2,077), Fort Worth (1,018) and Austin (407). Houston alone contributed almost one-third of the outstanding kits. But seven of the 20 biggest cities in Texas, including Arlington, Laredo, Plano, Irving and Brownsville, have yet to report. Their tallies—along with those of the 2,500 other missing agencies of assorted sizes—will likely boost the state’s total beyond the estimated 20,000. ...

DNA testing in many places continued to outstrip growth in crime-lab capacity. Backlogs, once cleared, would quickly form again. In 2009, a CBS News investigation found that rape kits in Alabama and Illinois took, on average, six months to process. In Missouri, the wait was almost a year. 

These kits—the ones submitted by law enforcement to crime labs for analysis but not returned for more than 30 days—are what the National Institute of Justice, the research arm of the Department of Justice, considers “backlogged.”

But that’s not what happened in Texas.

Rather, most of the 19,000 kits reported (so far) never saw the inside of a lab because a sexual assault investigator made the decision not to have them tested. Victims who endure DNA collection may understandably assume it will be analyzed as part of the investigative process, but until recently, law enforcement officers could choose whether to test a kit. Often, they chose not to.

This was by no means limited to Texas. A 2011 survey by the National Institute of Justice found that, on average, nearly one in five recent unsolved rape cases nationally contain forensic evidence for which police never requested analysis.

And here's a summation of the results from Houston's testing:

All of HPD’s old rape kits have now been tested and, as of mid-August, almost 2,500 eligible DNA samples had been uploaded to CODIS. Staggeringly, 933 of those—more than one-third—were “hits,” meaning they matched a known offender already in the database.

That doesn’t mean these were all serial rapists. Authorities are required to collect DNA samples from all felons, meaning many people have CODIS offender profiles because of drug convictions or other nonviolent crimes. Also, Texas and 29 other states take DNA from anyone formally charged with—or, in some cases, merely arrested for—certain felonies, so not everyone in CODIS has been convicted of a crime. Finally, a rape kit going untested doesn’t mean the rapist went free. If police declined to test the kit because the attacker’s identity was known, a CODIS hit may just confirm they got the right guy. As of June, 83 of the CODIS hits in Houston were such arrest confirmations. HPD has also stated that none of the results suggests a wrongful conviction. 

Another 34 kits had what are called case-to-case matches. That means the DNA found in the rape kit matched DNA already uploaded from evidence taken in a different unsolved crime—another rape kit, perhaps, or blood from a break-in—but for which there’s no suspect yet. If the offender is later convicted of any felony, his DNA will link him to the previous crimes.

That said, Houston’s recently tested kits have certainly delivered forensic evidence that could have been used sooner, as demonstrated by the 20 new arrests. Some hits have resulted in new charges but not a new arrest because the suspect was already incarcerated for a different crime

TX appellate courts (barely) split on mandatory DWI blood draws

We haven't talked much in a while about the fallout from the US Supreme Court's McNeely ruling, which held that police must obtain search warrants to draw blood after a DWI and that the fact that alcohol dissipates in the blood is not an extenuating circumstance that justifies drawing blood without a judge's order.

At first there was speculation whether the court's ruling would apply to Texas' law; a footnote in McNeely referenced Texas' statute without including it in the category of cases the ruling would impact. But, by my count, we're now up to five intermediate Texas courts of appeal (12th, 13th, 7th, 4th, and 9th) which have said police must obtain a warrant to draw blood from alleged drunk drivers, even if they're among the category of "mandatory" blood draw subjects articulated in state statutes. The most recent was the Ninth Court of Appeals (see the opinion). Only the 14th Court of Appeals ruled the other way by a 2-1 margin on a three judge panel. (Update/Correction: The full 14th Court later ruled the other way; see below) Even so, the split means the Texas Court of Criminal Appeals must eventually step in.

Increasingly, however, it looks like we may not see that decision from the court as it's currently constituted. If they wait until next spring, three current court members will be gone and (presumptively) Bert Richardson, Kevin Yeary, and David Newell will have replaced them. Who knows what if anything that might mean for an eventual decision? I'm not a lawyer, but after reading McNeely my own, initial educated guess was that Texas' mandatory blood draw statute would stand. Having now seen 16 of 18 appellate judges who've ruled on it strongly make the opposite argument, I think my initial gut reaction was likely wrong and tend to lean the other direction.

Really, though, it's a complete tossup. Who knows what Sharon Keller and Co. might do once three new members are enshrined, alliances shift, etc.? Come 2015 in many ways we'll have a brand new court and this won't be the only case where three new members might make a difference.

CORRECTION/MORE: An attentive commenter informed me that the full 14th Court of Appeals heard the Douds case en banc and overruled the three-judge panel. It's true; mea culpa. Here's the later, controlling opinion. So if six out of six appellate courts all have agreed that McNeely applies, maybe the CCA won't feel obligated to take up the issue after all! I know the prosecutors are dearly hoping they'll come in at the last minute and save the day after this rough string of appellate losses. But at the moment, there's really no reason to do so. It's not as though they don't have other important stuff on their plate.

Last minute oppo dumps in Harris DA race, y otras historias

Here are several items which haven't made it into independent posts this week but which merit readers' attention:

Blog vs. blog in Harris DA race
The gloves are coming off as the blogosphere dukes it out over the Harris County District Attorney race. Read Big Jolly on Devon Anderson and Murray Newman on Kim Ogg. Murray's complaint seems to be that Ogg complied with a court order rather than defy a judge and go to jail for contempt of court. And here's Jolly's cheapest shot:

Prostitute Court – Ms. Anderson wants to create a special court for prostitutes because “they are victims”. Yeah, right. [Ed. note: Yeah, really.]

Teachers – Ms. Anderson is going to help HISD crack down on cheating because teachers can’t be trusted. But hey, prostitutes, ya know?

Unfair? Perhaps. But it's also really funny. What this tells me is that the campaigns are dumping the kitchen sink on one another and the stuff that couldn't get placed on TV news or in the Chronicle is now being handed to folks at the Houston Press, second-tier media and bloggers to disseminate as widely as they can before election day. Nothing wrong with that. If campaigns didn't raise the issues, it's not like the media would lay out the strongest cases against candidates or dig up dirty laundry at the DA's office on their own. Some stories only ever get told if somebody has an interest in telling them.

That said, when I worked professionally as an opposition researcher I loathed these end-of-race mud-fests, which (to me) usually are the mark of a statistically close and strategically sloppy campaign. Anyone can go ballistic. The art to oppo work is to find the Big Theme that will both defeat an opponent and simultaneously elevate your candidate, not to hit the other side with everything you've got and hope for the best. ("Those who win every battle are not really skillful," the ancient Chinese general Sun Tzu opined, while "those who render others' armies helpless without fighting are the best of all.") Such kitchen-sink tactics reek of desperation by both sides. But then, there's a lot at stake. I will say it's much more fun to watch the process as a non-participant.

Is Craig Watkins in electoral trouble?
The Dallas News has a detailed analysis of the DA's race in that county. There, Republican Susan Hawk has run a more disciplined campaign than we've seen in Houston, in part because incumbent Craig Watkins seems to have barely taken the field, raising little money, using family members as campaign staff, and relying on the Wendy Davis campaign to drive turnout. So Hawk can control her own message more effectively, attacking on broad themes and letting the media and her opponent's own tone-deaf responses to their stories do most of the dirty work for her. Meanwhile, Watkins doesn't have money to frame his own message on TV, which leaves his image in the hands of his opponent and his attacks in the hands of the local press, which has not lately been kind to him. A couple of weeks ago I thought he was still the betting favorite; today I think it's a coin flip, at best. Hot race.

Human rights panel reviews hot Texas prisons
Speaking of hot, the Houston Chronicle reported that "The head of an international human rights panel recommended Monday that the federal government intercede in a legal dispute over excessive heat in Texas prisons." Texas officials say the group shouldn't be reviewing the matter until pending federal litigation is complete. See related recent coverage from The Atlantic.

A primer on approved interrogation tactics at Dallas PD
Texas Monthly's Skip Hollandsworth has a long-form piece based on the civil suit by Olivia Lord, a Dallas woman who was falsely accused by police of her husband's death (he committed suicide, see prior Grits coverage) and subjected to bullying interrogation tactics by a Dallas detective who moonlighted for the TV show The First 48.

The strange detention of Cheryl Irvin
Check out this strange story of Judge Denise Collins in Houston ordering the (probably illegal) detention of a criminal defense lawyer in her courtroom to prevent her from conferring with her client. (Probably another example of a last-minute oppo dump.)

Rod Ponton vs. Reason on synthetic drugs
West Texas DA Rod Ponton got angry with Reason magazine and fired off a 10-point rebuttal to a  of story about a synthetic drug case he's prosecuting. The magazine published his letter and addressed his points in detail, standing by their original story. Go see their back and forth along with the original article that got Ponton riled up.

'How will a small town in Arizona manage an ICE facility in Texas?'
A story from NPR with the same title as this subhed relays bizarre news regarding the management structure of what's about to become the largest immigrant detention center in the country in South Texas.

'Cops need to obey Facebook's rules'
You can't create fake profiles on Facebook, but law enforcement feels free to do so. Facebook wants them to stop.

Should the Fourth Amendment keep hotels from providing guest info to police without a warrant?
The Supreme Court will answer the question in a case they've agreed to hear from the Ninth Circuit. Here's an academic paper arguing that "the expectation of privacy in hotels should be measured in the same way that the Fourth Amendment deals with other types of residences."

Harris DA delayed notice to hundreds of drug defendants 'convicted in error,' some of them for many years

Apparently the plea mills that constitute the Harris County criminal court system have become so efficient they can secure convictions even without evidence; the accusation in and of itself appears to be sufficient to coerce a plea, and the local defense bar does such a crappy job that nobody ever calls them on it.

According to the Houston Press (Oct. 29), "In recent months the Harris County District Attorney's Office has sent out hundreds of notices to defendants convicted of drug offenses, telling them that forensic lab reports show they were 'convicted in error.'" The scope of the problem turns out to have been much greater than previously reported.

The letters, which were sent between July and September 2014, show hundreds of defendants who took plea deals for misdemeanor and felony drug possession charges were later cleared when evidence tested by an HPD crime lab analyst came up negative for a controlled substance. Court records show that while prosecutors were notified several years ago that those tests came back negative, defendants weren't told until months ago.

The Press is currently reviewing the cases, some of which date back as far as 2004. In some cases, the HPD crime lab notified the DA's office that there was no evidence of a controlled substance before a defendant even took a plea deal. Take, for example, a man who was charged on September 25, 2008 for possessing less than a gram of cocaine, a felony. Records indicate an HPD crime lab analyst sent prosecutors a letter on October 21, 2008 saying there was no evidence of a controlled substance. Still, the DA's office struck a plea deal with the man on October 26, 2008 -- one year in county jail. Anderson's office sent the defendant a letter on August 5, 2014, informing him that he had been convicted in error.

In most cases, it appears the negative lab reports came back months to a year after a defendant took a plea deal. Some defendants would go on to rack up multiple drug charges and other criminal convictions. However, district clerk's records show that for others, the faulty conviction was their only charge, one that sat on their record even though the DA's office for years had reports showing evidence in the case tested negative for drugs.

Next up, Anderson needs to launch an internal investigation to identify and interview the prosecutors in all those cases to discover whether they knew about the contradictory lab results, if not why not, and if so, what if anything they did in response to that information. If ADAs knew defendants were sitting in prison based on false charges and never notified them, those prosecutors should be the subject of state bar grievances and I wouldn't lose any sleep if they were hounded out of the profession.

Finally, thank heavens Harris has a public defender office to provide an institutional counter-weight to the DA's office and a structural means to handle such a large number of similarly situated cases. As we've seen from the Jonathan Salvador fallout, where that infrastructure doesn't exist the DA's office runs the whole show and may have less incentive to do the right thing.

MORE: In an email, Nicolas Hughes of the Harris County Public Defender office said he thought the current DA administration had been "more than helpful" in resolving these cases, some of which involved "clients who possessed something, but not what they were convicted of." In the past, he said, Brady issues were handled at the DA's office on a case by case basis by trial-court chiefs instead of imposing a comprehensive policy on similar cases as they've done here. So good for Devon Anderson as far as that goes. Beyond Brady issues, wrote Hughes:

I believe there’s a greater issue that lurks behind these cases. The decision to plea is the clients’ decision alone. I am not saying that there are not lawyers, even many lawyers, that prematurely urge their clients to plea, but there is an incredible pressure placed on incarcerated defendant. This is not as big of an issue for clients on bond, but it takes a strong stomach to sit in jail for a couple of months on a weed case when you can get you with credit for time served in a couple of days. Currently, if you are lucky, lab results come back in a month or so, but that depends on the lab. As the length of time increases, so does the intestinal fortitude to stand on principle. Even when you’re on bond, awaiting trial is hardly an enjoyable process. There’s a lot of pressure to crater, and I think every lawyer has met clients that have pled guilty, against the lawyer’s recommendation, because of the pressure. I don’t know what to do about this issue. Perhaps longer docket settings for cases and greater availability of bonds?

What’s the ultimate solution? It would be good if significantly more personal bonds were granted, particular in these non-violent drug cases. It would be great if the police were to employ a “catch and release” process, submit an alleged CS for testing, and wait until the results were back before making an arrest. It would be greatest if simple drug crimes were treated as “diseases” and not crimes or were simply taxed and regulated in a manner that helped society “insure” against any ills the drugs might cause.

Which of these do I think is possible or palatable to the public at large? I’m unsure. Though there’s a groundswell of support for legalization of marijuana, I do not believe a significant portion of the public support a total repeal of drug prohibition.

It's not clear we must wait to end drug prohibition to solve this problem, however. The idea of using "catch and release" - delaying arrest until a crime lab tests the evidence - would do the trick in most workaday cases. Meanwhile, there have been so many good arguments over the years as to why Harris County judges should issue more personal bonds that it seems doubtful this episode will change anybody's minds. But who knows? Maybe the scandal's scope and the specter of Brady violations for prosecutors could finally get people's attention.

I'm looking forward to seeing more local journalism on this story; it sounds like so far we've only scratched the surface.

Union: 'Right on Crime' backers are 'bottom-feeders,' 'vultures'

The less you have to sell, the harder you sell it!
The less you have to say, the louder you yell it!
The dumber the act, the bigger the confession!
The less you have to show, the larger you dress it!

You gotta get up!
You gotta get up and be loud!

"Loud!," Matilda London Cast

There's a rather remarkable diatribe on p. 3 of the newsletter (pdf) from the state's largest police union, the Combined Law Enforcement Association of Texas (CLEAT) that deserves attention for both its detachment from reality and its use of hyperbole and demagoguery to stir up their members. CLEAT executive director Charley Wilkison offered up a column which nearly reads like satire, announcing that:

After years of being marginalized as the nutcase enemies of the police, the far left and far right are now converging with a brand-new scheme.

Across the country comes the various “Right on Crime” and “Smart on Crime” initiatives that have at their core a sweeping plan to neuter law enforcement.

After failing at successfully bringing for-profit prisons and jails to the mainstream, the same crowd now aims to tear down the structure and bring your arrest powers, the number of police, the equipment you use, your job and your pension all down in one fell swoop.

Though Charley framed the issue in terms of left and right, it seems to be efforts by conservatives, particularly the Texas Public Policy Foundation and their allies at the Texas Association of Business, though he never names them - which really have gotten under their skin:

Remember a short time ago the businesses that pushed for a massive overhaul of the criminal code? Changes to juvenile code, enhancements of federal immigration law? These movements spurred a massive buildup of private, for-profit prisons and county jails. As time has gone by the political tides have turned and public distrusts for profiteering in prisons has become less appealing. Also the raw scandals behind many of the prisons have come to light.

Now that it’s clear that the criminal justice system will never be a long term profitable venture — the bottom feeders and vultures have moved on toward finding new money. They are now eying the costs of law enforcement, calling for a wholesale reduction of criminal penalties. This thinly disguised attack on law enforcement is a political game changer in that it is a bad idea wrapped in reasonableness. The sneakiest of the sneak plays.

The powerful people who helped lure millions to this country to lower labor costs have decided to send them home. The people who bankrolled the private jail industry now want the money from public safety budgets in your city, your county diverted away. They also look at your pension, your retirement, your health care benefits and now believe your benefit package is too rich and needs to be destroyed.

Never mind that the Texas Public Policy Foundation supported policies that helped close two private adult prisons last session, not to mention that municipalities, not the state, set the terms for police officer pensions, pay and health benefits. Why let reality get in the way of a good rant?

To Wilkison, officers are under an imaginary political siege whose supposed scope would shock  politicians who've supported the (IMO too) modest right-on-crime legislation at the capitol. According to him: "It’s clear that your profession, your rights and you as an officer are now under full scale attack," though not one actual example of such political "attacks" is cited in the article.

I realize this sort of hyperbolic innuendo and fact-free foolishness has become the norm throughout today's political culture. We can't talk about two or three cases of Ebola without every third idiot (many of them in front of a microphone) shouting that we're all going to die unless this or that xenophobic policy is implemented. We can't talk about foreign policy without somebody claiming the president is a traitor or insisting that anyone who opposes new wars is "soft" on terrorism. Oppose affirmative action? You're a racist. Support making people buy private health insurance the way they must for their automobile? You're a "socialist" who hates capitalism. Support the Second Amendment? You don't care about murder victims. Want the broken immigration system fixed? You're for "open borders" and eventually someone will call you a race traitor.

That's the political environment we live in today and, regrettably, Texas police unions apparently feel the need to replicate that sort of disreputable demagoguery to be heard over the bipartisan voices calling to scale back mass incarceration in the state. In reality, Right on Crime reformers so far have avoided proposals that would impinge on police unions' labor issues. But if the unions are going to come after their agenda as ferociously as this commentary implies, there's little incentive to keep avoiding them going forward.

Ironically, Texas' leading prison guard union supports a big swath of the proposed Right on Crime measures because Texas prisons are short-staffed and turnover at many units is so high it puts their members in danger. So they're fine with reducing the prison population and closing a few more prisons because it would improve safety and working conditions for the officers who remain, possibly even freeing up money to enhance their pay and benefits.

But police unions aren't known for their sympathy toward other workers in the criminal justice system. (Indeed, reading through the newsletter one discovers CLEAT is more angry at a competing union - the Texas Municipal Police Association - than even the Right on Crime backers.) They want theirs and don't really care how it impacts other unions, state or local budgets, or taxpayers who foot the bill for their salaries. I don't find that to be the mindset of average cops on the beat, it should be emphasized. But more often than not it's how their representatives in the unions behave.

Wilkison promised that CLEAT has "developed a brand-new legislative strategy" to be announced next month at their annual conference. The part of me that appreciates political theater (particularly comedic performances like Charley's column) would enjoy it if CLEAT and Co. decided to employ this sort of over-the-top rhetoric at the Lege.

Since the GOP took over the Texas Legislature in 2003, it for the most part has forsaken the sort of union bashing that has occurred in Wisconsin and elsewhere. But given that Republicans control the body by a 2-1 margin, if they decide police unions are the enemy - or if the unions insist on positioning themselves as such - Charley and his pals may discover what an actual anti-union agenda looks like. This seems like a "be careful what you ask for" moment.

Dallas prosecutors withheld exculpatory evidence in 1999 murder trials

Two more Dallas men have been released based on habeas corpus writs after prosecutors withheld critical, exculpatory evidence at their trials about deals offered to jailhouse informants, reported the Courthouse News (Oct. 28). The article opened:

Two Texas men were freed Tuesday when their life sentences were overturned due to prosecutorial misconduct during their murder trials.

Dallas County District Attorney Craig Watkins agreed Tuesday morning to overturn the convictions of Stanley O. Mozee, 55, and Dennis Lee Allen, 52. The men were convicted of the robbery and stabbing death of the Rev. Jesse Borns Jr., who was killed in April 1999.

Dallas County Judge Mark Stoltz released Mozee and Allen on $25,000 bond during a hearing packed with their friends, family and other exonerees.

Both men await appellate rulings on their case and new trials.

Allen told the media outside the courtroom that he feels like he is "in heaven."

"Try to imagine the best joy you ever experienced in your life," he said. "That's what I'm feeling right now."

Mozee said that despite his ordeal he is not mad at anyone.

"I give the Dallas County judicial system a positive note," he said. "The Texas Court of Criminal Appeals [must now] act and do the just thing in this matter."

District attorney spokeswoman Debbie Denmon said Watkins' office was approached by the Innocence Project in late 2008 and allowed its workers to review of the case files, in accordance with Watkins' open file policy.

"It was only after this open file review that the Conviction Integrity Unit and the Innocence Project discovered letters written by jailhouse informants who were ultimately called as witnesses by the state," Denmon said in a statement.

"In these letters, the witnesses demanded certain benefits from a former Dallas County prosecutor in exchange for testifying, and/or sought to have the prosecutor deliver on promises that the witnesses believed had been made in exchange for their testimony."

The letters and "substantive discussions" were not disclosed at either Mozee's or Allen's trials.

See related coverage from the Dallas Morning News.

Grievance: DA's failure to notify defendants in Salvador mess kept inmate wrongly incarcerated for two years

A state bar grievance has been filed against Fort Bend County District Attorney John Healey over his failure to notify defendants eligible for release from prison that evidence in their cases had been tainted by the Jonathan Salvador scandal, reported Leah Binkowitz at the Houston Chronicle (Oct. 26). Now, defendant Jacob Estrada, whose conviction was overturned earlier this year, "claims prosecutors in Fort Bend County delayed notifying criminal defense lawyers of the tainted evidence, as required by law." Wrote Binkowitz:

When the Court of Criminal Appeals finally overturned his conviction in June and ordered his release, Estrada, 29, filed grievances with the State Bar Association against Fort Bend District Attorney John Healey and his chief narcotics prosecutor, Mark Hanna.

In them, he claims Healey's office, by dragging its feet, kept him in prison, knowing the evidence against him was not only tainted but actually had been destroyed, meaning prosecutors had no basis for ever retrying him.

Now, Estrada's grievances have become an issue just weeks before an election in which Healey will have a Democratic challenger for the first time in 20 years.

Healey, a Republican, would not comment on Estrada's case or on his decision to delay notification that the underlying evidence in his conviction had been undermined.

"I believe that our response was fair, it was realistic, and I think at the end of the day, it will be viewed as an acceptable response," Healey said.

Healey said that there were no instructions for how he should proceed once he was informed that he had more than 100 drug cases involving evidence handled by the discredited Department of Public Safety chemist Jonathan Salvador, who was fired in 2012.

It must be said that Healey's claim there were no instructions for how to handle the Salvador case is patently false. The Texas District and County Attorneys Association issued detailed guidance regarding notification, appointment of counsel for habeas writs, etc., early on. Here it is, from April 2012. Healey claims later in the story there were no "rules" for how to handle the Salvador case, which is slightly more accurate (if a bit of a weasel word, under the circumstances), but he absolutely received "instructions" regarding his obligations as a prosecutor in these cases. He just chose to ignore them.

MORE: Grits should have mentioned that, in addition to TDCAA's notice, the Forensic Science Commission issued a lengthy report (pdf, see Exhibit G) on the Jonathan Salvador episode that included recommendations for notifying defendants (and even form letters for prosecutors to use) which were sent to all 36 affected DA's offices. And the Court of Criminal Appeals' Criminal Justice Integrity Unit issued a "white paper" with the FSC on the topic of notification in cases of widespread forensic errors. That makes Healey's claim that he'd never received guidance regarding how to respond even more unbelievable. Really, it's just a lie, and a incredible one at that.

My personal belief is that the state bar will do nothing about this, but that says more about the ineffectiveness of their regulation of prosecutors than it does whether Healey intentionally delayed notifying defendants whose cases merited relief. It's quite clear that's exactly what happened.

How much do you wanna bet there are other counties among the 36 which also failed to notify defendants? Fort Bend almost certainly isn't the only one.

RELATED: Fort Bend DA failed to notify defense of alleged misconduct by DPS lab worker.

Levin: Helping ex-offenders find employment makes us safer

Marc Levin of the Texas Public Policy Foundation was quoted this week in the New York Times (Oct. 24) supporting the idea of "ban the box" legislation making it easier for ex-offenders to apply for certain public sector jobs. Here's a notable excerpt:

“There’s been a shift in people away from wanting to get even,” said Marc A. Levin, the policy director for Right on Crime, a conservative anti-crime group in Texas. “People are focused now on getting results. It really is a great benefit to public safety if ex-offenders are able to get jobs, find places to live and get occupational licenses — whether it’s from the perspective of the ex-offender or those of us who are going to live next to them.”

With an estimated one in three American adults having been arrested at some point in their lives, and 16 million people — about 7.5 percent of the adult population — who are felons or former felons, the question of how to reintegrate the 700,000 people who are released from prison each year has become increasingly urgent.

During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years.

The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening.

 

Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted.

TPPF, TX Appleseed: Texas should decriminalize truancy

Derek Cohen of the Texas Public Policy Foundation and Deborah Fowler from Texas Appleseed had an op ed in the Dallas News this week (Oct. 23) making the case for decriminalizing truancy. Here's a notable excerpt:

Texas is one of only two states (the other is Wyoming) that employ the criminal justice system to punish truancy. The Texas Education Code — the body of law that regulates the activity of all educational institutions in the state — empowers school districts to file a criminal complaint against a child as young as 10 who has missed three days of school. After 10 missed days within a six-month period, however, the district’s discretion is removed and it is required to file against the child.

This is known as “Failure to Attend School,” or FTAS, a Class C misdemeanor that can carry up to $500 in fines and leave an indelible mark on the child’s criminal record. These fines are levied all too often on low-income families who don’t have the savings to pay them. If a child or parent is unable to pay the $500, or if the child misses one more day after adjudication, he or she can face jail time for the violation of a valid court order. In addition to the burden this places on families, the criminalization of truancy is a drain on limited court resources.

Adding to the frustration and confusion, the Texas Family Code already has a provision dealing with truancy. This is the Conduct Indicating a Need of Supervision section, which directly mirrors the language in the Education Code. However, this statute prosecutes students only through the juvenile court, eliminating the concern that this will lead to an adult record.

Further, FTAS misdemeanors saddle children with a criminal record that can keep them from future civil or military service. The sealing or expunction of these minor offenses stand to cost hundreds of dollars more in court costs and legal fees for individuals who, usually, are among those least able to afford it.

The Texas Legislature should move quickly to remove the criminalization of skipping school from the Education Code and allow school districts to find a truancy reduction method that works best for them.

Dallas and Fort Bend counties each have established a “truancy court,” a specialized docket that processes only kids who skip school. While the numbers seem to show the courts’ efficacy in reducing dropouts, credit belongs more to the specialized retention programs that judges are ordering truants to attend. The current process that forces children into these programs serves only to saddle these youngsters with a criminal record for minor misbehavior.

The case for treatment in domestic violence cases

Dallas Judge Roberto Cañas authored an op ed in the Morning News (Oct. 26) on family violence prevention, calling for expanded use of treatment programs for abusers in lieu of incarceration. Here's a notable excerpt:

No ironclad evidence exists to prove that intervention and prevention classes are the miracle cure for domestic violence. But treatment can make a difference — and the judicial system would be smart to require this rehab of as many offenders as possible.

A new study by the University of Texas at Dallas found that Dallas County abusers who were sent to the classes were less likely to commit another act of domestic violence than those sentenced only to time in a cell.

The 2,000-plus misdemeanor cases the UTD team analyzed involved first-time offenders and less-violent crimes. The rehab-over-jail approach seems particularly effective here: Catch the problem — and work to correct it — before behavior is ingrained in the psyche.

Instruction starts with educating the culprit on what actually constitutes abuse as well as the basics of leading a nonviolent life.

That might sound way too elementary to many readers, but remember that the destructive behavior usually grows insidiously — impatience and harsh teasing turn into name calling and cold shouldering, then into denigrating emotional abuse. At some point, the blows turn physical.

Successful anti-abuse education also must persuade the class that violence is a choice. Why would you punch a spouse in anger when you’d never think of cutting loose on your boss or cable guy?

The best way to accept lessons like these is shoulder-to-shoulder with other abusers. Accountability within the group and a commitment to check in with one another over the long haul are key.

Support for anti-battering education doesn’t mean kicking the judicial system out of the picture. Classes work only if partnered with the courts and law enforcement.

Focusing on treatment instead of incarceration may also persuade more victims to cooperate with law enforcement instead of protecting their partners if they think they might get help instead of being jailed as a result of their participation in the case.

Obviously this isn't a prescription for every case - especially the more extreme ones - and there's evidence that some domestic violence treatments aren't necessarily effective. But Judge Cañas is probably right that society's punitive mindset toward abuse prioritizes punishment over behavior modification in a significant number of cases where more could be done to change the family dynamic rather than simply punish, grandstand, and move on.

If Texas (re)diverts state highway fund to roads, what happens to border security at DPS?

Interesting to see that, while on the gubernatorial campaign trail this year, Greg Abbott pledged to seek diversion of state highway fund monies from the Department of Public Safety to road building. According to a recent endorsement in the Odessa American (Oct. 26):

Abbott also recommends amending the Transportation Code to limit State Highway Fund expenditures to intended transportation purposes and amending the Texas Constitution to dedicate more than two-thirds of vehicle sales taxes to the highway fund. As he puts it, his plan is rooted in transparency for the citizenry of the state, and we couldn’t agree more.

Speaker Joe Straus has suggested a similar stratagem, which makes perfect sense from the standpoint of bolstering flagging road infrastructure but which would dramatically undermine the principle source of  increased revenue to DPS over these last years, particularly the half billion-plus the state has spent on redundant border security.

Anyone who's driven Texas highways recently knows the state needs more investment in transportation ASAP, but if the state highway fund is (re)diverted then the Lege will either have to fund DPS activities from some other source or scale back their budget to make the whole thing balance.

Better roads and Texas' border security boondoggle: In the end, legislators can only pick one to fund unless they deign to raise taxes or siphon from the Rainy Day Fund. Either funding option seems viable but both also seem politically unpalatable in the current environment, which could make debates over spending state highway funds particularly vexing next spring.

MORE: Abbott's statements seem to be boxing him more and more into supporting tax hikes to pay for all he's promised. A Houston Chronicle profile declared that Abbott "[s]upports doubling state spending for the Texas Department of Public Safety to add manpower, technology and tools for added surveillance at the Texas-Mexico border" as well as "funding for additional surge-enforcement operations along the border." You can't do that and also redirect the state highway fund away from DPS and back to highways without additional revenue from somewhere, even if "new taxes" don't appear to be part of the soon-to-be-governor's campaign platform.

Exoneree awarded $2.3 million jury verdict over innocence evidence concealed by prosecutors

Texas Lawyer brings word (Oct. 23) of the latest example of innocence compensation, this time through a federal courtroom instead of the state's innocence compensation law:

A federal judge issued a $2.3 million final judgment on Oct. 15 in favor of Manuel Alvarez, who filed a §1983 municipal liability complaint alleging that the city of Brownsville allowed its jailers to beat him in 2005 when he was 17, and then falsely charged him with assaulting them. Alvarez alleged that the jail concealed from him and his defense lawyers a videotape of the beating.

Luis Avila of Dallas and Eddie Lucio of Brownsville represented Alvarez, who served four years in a state jail for the assault charges before the Texas Court of Criminal Appeals exonerated him in 2010 on the basis of his actual innocence, Lucio said. But Alvarez had a criminal record when the beating took place, Lucio added. That background presented an obstacle but a surmountable one at the jury trial held to decide the damages for municipal liability claim.

An attorney for they city said the will appeal, arguing "that a precedent in the U.S. Court of Appeals for the Fifth Circuit barred Alvarez from claiming a Brady violation, on which he based his complaint, because he had previously pleaded guilty. A Brady violation occurs when prosecutors fail to abide by the U.S. Supreme Court 1963 ruling in Brady v. Maryland and disclose all exculpatory evidence." The story concluded:

Both Avila and Lucio expect the Fifth Circuit, based on the questions of status of Brady rights for defendants who have pleaded guilty, to review the case.

For now, though, the two lawyers are savoring their victory for a client "who was not a model kid," as Avila said, but who also did not deserve to be beaten and then charged for assaulting a jailer while a videotape of his beating remained hidden from his lawyers.

'Evidence of things not seen' and other stories

Here are several items that haven't made it into individual blog posts this week but which deserve Grits readers attention:

Another plea for Max Soffar
At the Texas Tribune, Barry Scheck joined the chorus of voices calling for the governor to pardon Max Soffar before cancer ends his life. See earlier, similar calls from Michael Hall at Texas Monthly and Michael Berryhill here on Grits.

Dallas to test rape kit backlog
Dallas has received a grant to fund analysis of its backlog of rape kit testing.

Transgendered inmate sues over prison rape
In light of Gov. Perry's decision that Texas will not comply with the federal Prison Rape Elimination Act, a lawsuit by a transgendered TDCJ inmate alleging the state failed to protect her from sexual assault potentially takes on added import. To the extent Texas faces consequences for its decision to snub PREA, it will be federal lawsuits like this one that hold TDCJ accountable.

Austin cop fired for retaliating against paramour's husband
Reported the Austin Statesman, "Austin police fired a lieutenant Wednesday after an internal affairs investigation determined he made false reports to have the husband of a woman who was having an affair with him arrested."

'Evidence of things not seen'
Here's an interesting-looking academic article on tunnel vision in innocence cases and the failure to take into account bits of evidence that may not exclude a suspect but fail to align with witness statements or other evidence relied upon for prosecution. It includes a good analysis of the evidence from the Carlos de Luna case out of Corpus Christi in which the state focused on de Luna despite the greater weight of evidence pointing to another man, Carlos Hernandez. Seven pieces of evidence matched de Luna, while seventeen matched Hernandez including the seven the matched de Luna. Grits may have more to say about this after reading it more thoroughly, but I thought I'd pass the link along.

The case for punishing prosecutor misconduct

At Texas Monthly, Pam Colloff yesterday made "the case for punishing prosecutors who abuse their power," focusing on the Hannah Overton, Michael Morton and Anthony Graves cases. She also highlighted a case that's gotten less attention:

Take the case of Alfred DeWayne Brown, currently on death row. In 2005 Brown was convicted of killing a Houston police officer in a bungled robbery that also left a store clerk dead. Brown always stuck by his alibi: on the morning of the crime, he said, he never left his girlfriend’s apartment. He claimed to have called his girlfriend at her workplace at around ten—the same time prosecutors said he was at another location, with two co-defendants, having just committed the double homicide. At the time of his trial, prosecutors did not turn over any phone records. Not until 2013 did it come to light that those records did, in fact, exist and that a prosecutor had asked to review them. The records, which were found in an investigator’s garage, show that a call had been placed from Brown’s girlfriend’s residence to her workplace at 10:08 a.m. on the morning of the crime. The Harris County DA’s office, which claimed that its failure to disclose the phone records had been inadvertent, readily agreed in May 2013 that Brown should seek a new trial. Although more than a year has passed, the CCA has still not issued an opinion in the case, and until it does, Brown will remain on death row.

Colloff suggested the State Bar of Texas must "radically reform the way it handles allegations of prosecutorial misconduct; right now, the bar’s guiding principle seems to be to ignore even the most egregious examples of bad behavior by prosecutors unless there is enough attendant media attention that some sort of action must be taken—and even then, it’s usually a slap on the wrist."

She also recommended that, "the Legislature should examine the issue of absolute immunity for prosecutors. There are good reasons why DAs need to have some degree of protection; if they could be sued for any decision they made, they could not perform their jobs. But because they are shielded from any civil liability, they have no motivation to play by the rules, especially when the only other check on their behavior is a toothless state bar."

Poll: Harris DA's race in a 'dead heat'

A new poll from KHOU-TV in Houston shows the Harris County DA's race is a "dead heat" between incumbent and Rick Perry-appointee Devon Anderson and Democratic challenger Kim Ogg, with an enormous swath of the electorate undecided (46%).

That doesn't surprise me. The incumbent replaced her husband who'd already been diagnosed with terminal cancer before he took office, so the public barely knew him, nor her, despite her having been on the ballot before as a judge (a very different sort of election). That means both candidates remain relatively unknown to the voters, who will judge mainly based on party label. Indeed, many undecideds in that poll may never decide at all but will merely vote a straight ticket, R or D, perhaps not even knowing the DA candidates' names.

So the main tasks for both candidates are to drive turnout among the base and wooing the vanishing number of independents and ticket splitters out there who pay attention to candidates beyond their party labels. Those twin goals explain every one of the candidates' positions, which have been refreshingly populist and reform-minded on both sides. This is an example why I prefer it when candidates must run in competitive general elections. It enforces pragmatism and interest-based centrism that's notably absent in both parties' primaries and leaves the victors more prepared to govern.

MORE: See a decent backgrounder on the two candidates.

Backlash brewing against video-only jail visitation

In Austin, activists are pushing for the Sheriff to allow face-to-face visitation for county jail inmates, a practice ended as part of a new contract with Dallas-based Securus Technologies which provides for video-based visitation only. (See prior Grits coverage.) As a backdrop, the Texas Observer's Forrest Wilder reported recently (Oct. 16) on controversies surrounding Securus and video-only jail visitation. That article concluded:

In Dallas, activists and some local leaders, especially County Judge Clay Jenkins, helped kill a contract with Securus that included a provision stipulating that the jail had to eliminate all in-person visits. “It is very important that we do not profit on the backs of inmates in the jail,” Dallas County Commissioner Elba Garcia said in The Dallas Morning News.

The Bastrop County Jail is set to eliminate all face-to-face visitation in early November. Instead, visitors can use a free video terminal at the jail or pay $1 per minute to use the remote video system.

The contract, reviewed by the Observer, cuts the county in for 20 percent of Securus’ revenues. It doesn’t require, like the Dallas contract, that in-person visitation be eliminated, but it stipulates that for the first two years the county only gets paid if it produces 534 paid visits per month.

In Austin, the Travis County Commissioners Court voted in October 2012 to add video visitation as an ancillary service—something prisoners’ rights advocates are fine with as long as the rates are reasonable and the service is reliable. But in May 2013, Travis County Sheriff Greg Hamilton quietly eliminated in-person visitation. Defense attorneys and inmates sued in April, claiming that the jail and Securus were unlawfully recording privileged conversations between inmates and attorneys and leaking them to prosecutors. On top of that, [Grassroots Leadership's Kymberlie] Quong Charles says the lack of human interaction is worsening conditions.

“What we found is that everything they said would happen in terms of improving conditions has actually gotten worse,” she said. “I think people are frustrated, they’re not getting to see anybody.”

A report released this morning by Grassroots Leadership and the Texas Criminal Justice Coalition found that disciplinary infractions, assaults and contraband cases all increased within the year after the video-only policy was put in place. The report concedes that the trends may be an aberration or temporary but cites social science and long-standing prison policies holding that visitations improves jail security and lowers recidivism rates. One study of 16,420 offenders commissioned by the Minnesota Department of Corrections, for example, found that “prison visitation can significantly improve the transition offenders make from the institution to the community.” Even one visit lowered the risk that a person would re-offend by 13 percent.

“Video-only visitation policies ignore best practices that call for face-to-face visits to foster family relationships,” the report argues. “They advance arguments about security that are dubious, not rooted in research, and may be counter-productive.”

Grassroots Leadership and the Texas Criminal Justice Coalition report found 10 counties in Texas that have already deployed video-only systems, with more considering the option.

Are MEs fudging cause of death for Texas prisoners?

If one person per day is dying in custody of state and local law enforcement in Texas, the next obvious question is, "What do those cases look like?"

Nicole Brambila at the Lubbock Avalanche-Journal over the weekend (Oct. 18) offered up a portrait of local death in custody cases, basing the story on the list compiled at the Attorney General referenced in this recent Grits post. Well done. This same type story can and should be localized by media in other jurisdictions around the state.

The most dramatic element in the article was the saga of Benjamin McCoin, whose death at the Montford psychiatric unit occurred due to injuries sustained while being restrained by guards. The Tarrant medical examiner called the death an accident; the Lubbock medical examiner labeled it a "homicide." TDCJ spokesflak Jason Clark understatedly told the paper, “It’s certainly a unique situation where you have differing causes of death between two medical examiners.” Indeed, isn't it?

Lubbock County Medical Examiner Sridhar Natarajan has reviewed four death cases from Montford in the past year. "In two of the cases the state said were natural deaths — including McCoin’s — Natarajan has changed the cause, out of concern," reported Brambila. Here are more details on the other case:

The second involved 27-year-old Marsele Dauntri Thompson, who in January was found unresponsive in his cell. Tasha Z. Greenberg, M.D., in Tarrant County reported finding “no evidence of trauma or foul play.”

And yet, the autopsy records evidence of a contusion on Thompson’s forehead in the process of healing, as well as abrasions around his eyes and and additional contusions on his arm and thigh.

Correctional officers were supposed to be conducting 15-minute checks on Thompson, a schizophrenic on water restriction for his personal safety. However, when officers discovered

Thompson sitting nude in his cell with his legs crossed, his body was cold.

Generally, a body is stiff and warm at two hours. It’s stiff and cool between four and six hours.

“When the body was found it was cold, in rigor,” Nataranjan said. “That’s not going to happen within a 15-minute check. It doesn’t match with 15-minute checks.”

Natarajan reported the death undetermined.

“If I’m not able to explain it, I’m not going to give a cause of death,” Nataranjan said.

The Texas Office of Inspector General is also investigating Thompson’s death, Clark said.

Excellent reporting. Nice to see local journalists following up on those death-in-custody reports. There's no way such stories get reported unless somebody's doing the grunt-work to follow up on the details of individual cases in the AG report.

These sorts of regional and local stories are low hanging fruit for reporters elsewhere, it should be emphasized. That AG death-in-custody list represents a huge cache of under-utilized story leads that typically aren't followed by local reporters because they require work and the government hasn't handed them the story on a platter. This article shows what's possible with just a little elbow grease. You never know what you'll find until you look. One hopes others follow suit.

Backstory on Pam Freeman indictment, ouster of parole board member who tried to hold her accountable

Parole attorney Kevin Stouwie offered up a detailed explication of "The Pamela Freeman debacle as I understand it" from the perspective of the person whose complaint sparked the investigation that led to her indictment earlier this month. (I'd have seen this sooner if I read Grits comments more faithfully; it's a little more than a week old.) The item is particularly notable as the only new detail we've received on the topic since the single round of MSM attention Oct. 3.

Stouwie had this to say about recent parole board appointee Roman Chavez's recent ouster, which has yet to be covered in the MSM:

There is presently a vacancy in one Board Member slot; the slot recently vacated by the Board Member in Huntsville, Roman Chavez.  Board Member Chavez  was constructively discharged (my interpretation) by Board Chair Rissie Owens the day before the indictment of Pamela Freeman.  The official version is that Ms. Owens merely made a decision to transfer Mr. Chavez to the Austin Board Office.  Another way to view the situation is that Ms. Owens knew Mr. Chavez would not uproot his family and move to Austin.  Although this management decision by Ms. Owens is certainly worth further scrutiny, it must be clarified that Mr. Chavez is NOT, and has never been suspected of doing the things for which Ms. Freeman is indicted, and neither is Ms. Owens for that matter.

In fact, Mr. Chavez seems to have done whatever he could to try to hold Ms. Freeman accountable once he concluded that Ms. Freeman had engaged in unethical and illegal acts while she was supposed to be carrying out her job responsibilities on April 30.

According to Stouwie, Chavez was one of the people to whom Freeman allegedly lied about five inmates' reasons for missing their 20-year parole interviews and in fact reported Freeman's alleged misconduct himself. After Stouwie brought his allegations to Sen. John Whitmire and the Office of Inspector General, he wrote, "I also later learned that Mr. Chavez had, at some point, brought the Freeman debacle to the attention of OIG officials.  I do not know when, or how Mr. Chavez classified the Pamela Freeman actions of April 30, but I assume he will be one of the witnesses called by the attorneys at trial, in the event she is crazy enough to take her case to trial."

Following a detailed account of the episode that spawned Freeman's indictment, Stouwie concluded with this tidbit: "It’s my understanding that Ms. Freeman was finally suspended after she was indicted. However, she is still collecting a paycheck.  Lord only knows how that is possible, especially given a pile of other complaints that were made by many different people in recent years. One thing that deeply troubles me is that Ms. Freeman may have falsely claimed that other inmates refused to be interviewed on other occasions."

Go read the whole thing. Stouwie's post substantially fills out the picture compared to the indictment and initial MSM coverage, after which this story inexplicably seems to have fallen off the map.

Why Houston won't get the private prison museum it deserves

Okay, they almost got me. I couldn't tell for sure just from reading it if this Free Press Houston story was satire. Editors confirmed that it is. Lucky I checked before writing something, a reliable reader sent it to Grits thinking it was legit.

The last few paragraphs seemed too out there to be true, but somehow the world seemed just possibly weird enough to contemplate the viability of the story of a plain speaking, fascist School-of-the-Americas reject deported from America's first private prison facility in Houston in the 1980s who becomes inspired by Corrections Corporation of America, launches a chain of private detention facilities serving death squads and torturers in El Salvador, then returns to America to buy the converted motel where he was earlier imprisoned and turn it into a private prison museum that lionizes T. Don Hutto.

What makes it fine satire is that it could be true: The world is just nuts enough to allow for it. Alas, not this time. Good stuff, though. Read it.

Waste in the justice system? Say it ain't so!

Do you have stories of government waste?

Texas Public Policy Action, a 501c(4), is collecting stories of government waste through next Friday Oct. 24, with the top suggestion receiving $4,000. All suggestions will be compiled into an anthologized publication on waste that will be delivered to legislators offices next session. See Big Jolly's blog for more detail.

Offhand, at the municipal level I think of wasteful spending on police officers covering false residential burglar alarms, which account for 10-12 percent of patrol calls in most Texas departments.

At the state level, offhand, there's over-incarceration of nonviolent drug and property offenders and elderly offenders from decades ago who can't make parole and cost the state a small fortune in medical bills. (The advent of life without parole will exacerbate that trend in the future, though for the most part people who committed violent offenses aren't getting paroled now.)

The Driver Responsibility surcharge generates revenue for hospitals but at the expense of county courts, jails, local police, and especially drivers who must pay the externalities from this ill-conceived project.

Use the comment section to suggest areas of waste in the criminal justice system, and see the full contest rules if you're interested in entering.

Dallas News urges Dems to split tickets in DA's race

Ouch! The Dallas Morning News endorsed Republican Susan Hawk for District Attorney over incumbent Craig Watkins in an editorial which concluded:

Watkins, 46, relied even more on straight-ticket Democratic votes in his narrow 2010 re-election win. After that, ironically, he went after Democratic judges as part of his with-him-or-against-him courthouse mentality. More than one judge has accused him of abusing his authority by threatening to drag them to grand juries over decisions he did not like. Another judge found him in contempt for refusing to honor a subpoena to testify; Lena Levario would be among the judges targeted by Watkins-endorsed candidates.

Dubious ethics only worsened in his second term, evidenced by his fast-and-loose treatment of forfeiture funds supposedly reserved for law enforcement purposes. Instead, Watkins chose to spend $50,000 to settle his own car crash and another $1,250 to sweep his offices for listening devices.

The car crash settlement included a $40,500 penalty paid to Watkins himself if the other driver spoke publicly about the incident.

Watkins deserves credit for many of his “smart on crime” strategies. But that was then. Now, voters should hire his successor in Hawk, even if they have to split straight tickets to do so.

If Watkins' campaign had raised more money he could respond on TV before early voting begins next week to counter the impact of this endorsement and Hawk's TV ad promising to restore voters' "trust" in the office. Instead, he must continue bleeding through the weekend and hope that Wendy Davis' campaign can generate extra Democratic turnout where he cannot. Watkins' re-election in 2010 was decided on turnout and straight ticket voting. If Susan Hawk and the Dallas Morning News convince 10,000 Democrats county-wide to split tickets in the DA's race ... well, let's just say Watkins campaign team should be in a private panic right about now. He's still probably the betting favorite given recent Dallas County electoral trends. But Watkins faces greater danger than in 2010, and there's a lot less he can do about it in the final month compared to four years ago.

Watkins' position is further weakened because of his strategy of using his prosecutors to primary Democratic judges he didn't like, a method that was in several cases successful and left factions of the party particularly upset with him. He also ran his first assistant in a failed bid for Dallas County Democratic Party Chair, which forced Democratic leaders county-wide to already choose to oppose him once this year. If just a few of them still feel bitter and defect in the secrecy of the voting booth, a close watcher of the Dallas vote count wouldn't be surprised at an upset.

Having performed opposition research in dozens of political campaigns, at this point I've broken out the popcorn and am watching the three big DA's races - Dallas, Harris, Bexar - mainly for the entertainment value. There's nothing I can do about them in these closing weeks and the voters' whimsy does not respond to reasoned argument. Watkins has done a lot of things I liked, even admired, but he's also brought virtually all of his present problems on himself. His fate is up to Dallas voters, now ... God help us all.

RELATED: Mike Hashimoto at the Dallas News liked this blog post, writing an appreciation on the DMN Opinion Blog. TANGENTIALLY RELATED: See the Texas Tribune's coverage of the Bexar DA's race, made more competitive by a single donor dumping nearly $700K into the coffers of the Democratic challenger.