Tuesday, June 27, 2017

Pretext stops subvert public trust, undermine rule of law

A prosecutor from Limestone County, seeking to justify what appears to be a classic pretext stop of a driver, in April posed this question for their colleagues on the Texas District and County Attorneys Association User Forum:
I have a suppression issue with a defendant coming to a stop at a red traffic light, then turns on her left turn signal. After a few seconds she then switches to the right turn signal, then proceeds to turn right. I was wondering if anyone knows if I can say she violated 545.104 for not "signaling continuously for not less than the last 100 feet of movement before the turn" or if the fact that she came to a complete stop at the red light negates the 100 ft rule. Thanks!
Another prosecutor from Brazos County chimed in to assure our protagonist that "you're 100% good" on such an interpretation. So, suggesting you'll turn left with your turn signal, changing your mind, then signaling and turning right is a criminal act, according to this myopic and uncharitable view.

The first prosecutor mentioned a couple of supposed case cites to support this position, but when Grits looked them up, neither seemed on point.

This law requiring drivers to signal 100 feet in front of a turn is a near-constant source of shenanigans by cops on the roadside. It's one of the more common "pretext stop" offenses - when officers are using a traffic stop as a phony excuse to stop and search drivers.

There's no driver out there who has never violated this law, in part because it's frequently an impractical and wrongheaded suggestion to follow.  E.g., if there's a business entrance or alley within 100 feet of the turn you're taking, it can be confusing to others to use the turn signal prematurely. And anyway, how good are you at estimating exactly 100 feet?

Moreover, who hasn't changed their mind about their destination, signalling one way then realizing some prior obligation meant you needed to go the other? (Considering the question, there's a stop sign a few blocks from my home - where one direction goes downtown and the other to my daughter's place - where Grits probably does that several times per month!) The driver wasn't accused of turning from the wrong lane, so the turn, if signaled, would have been legal from that spot.

A law that everyone routinely violates because of its arbitrariness and impracticality becomes a path for the government to bypass 4th Amendment protections. Police can simply follow anyone they choose for a few minutes and wait for a signal less than 100 feet before a turn. Then they get a supposedly legal if objectively dubious basis to conduct a roadside search.

This is the sort of behavior by cops and prosecutors which erodes public trust of law enforcement by treating the law as a tool to violate people's rights rather than an agreed set of rules clearly designed to protect them and keep everyone safe on the road.

Monday, June 26, 2017

TDCAA: Some Texas probation, parole orders may violate new SCOTUS ruling on sex-offender access to the internet

How will the new Supreme Court ruling in Packingham v. North Carolina - which forbade blanket bans on use of the internet for sex offenders - affect Texas cases? The Texas District and County Attorneys Association offered this preliminary analysis:
Texas does not have a statute that criminalizes a sex offender’s access to social media websites, but Texas does have statutes that permit orders prohibiting a sex offenders’ access to social networking sites, both as a condition of parole (§508.1861(b)(1)(B) of the Government Code) and as a condition of probation (Art. 42A.454(b)(2) of the Code of Criminal Procedure). Based upon the broad language of this decision, it seems likely that a wholesale prohibition of access to Facebook or Twitter or Instagram would be unconstitutional. A more directed condition, prohibiting communication with minors or prohibiting access to chat rooms or dating websites, would seem to be permissible, even under this decision. But it is certainly going to create new litigation.

When Mom is arrested, assault by Tazer, and other stories

Having just returned from a brief if much-needed vacation, let's round up a few items that popped up in the last week while Grits was gone:

What happens to kids when Mom is arrested?
The Dallas Morning News published an excellent feature on what happens to kids when Mom gets arrested. Nobody tracks them in the system and neither police or jails ask arrestees about dependent children upon intake. The article included this short video:

Litigation over weather-related deaths at TDCJ heats up
After years of anticipation, TDCJ finds itself in trial this week to determine whether their un-air conditioned prisons which have caused numerous heat-related deaths constitute unconstitutionally cruel and unusual punishment.

Straight ticket voting ends for Texas judges in 2020
The Legislature this year eliminated straight ticket voting for judicial elections beginning in 2020. This should help, but the SA Express News is right it would be better if they were entirely non-partisan. There aren't Democratic or Republican positions on most questions judges must answer and forcing them to pander to their parties primary voters leads to some strange outcomes, like the guy in 2016 who made it into a runoff for the Court of Criminal Appeals running on an anti-abortion, pro-Second Amendment platform unrelated to the duties of the court.

Good legislation still didn't 'end' debtors prison practices
Grits remains exceedingly pleased that Texas' debtors-prison reform legislation (HB 351/SB 1913) passed this year, but to my friends in the MSM: Let's please stop claiming that this will "end" debtors prison practices. It will at best ameliorate them. Texas has improved the situation. It has not solved the problem. People will still be jailed because they can't afford to pay traffic tickets, we just don't know yet what the reduction in jail sentences will be. For that matter, barring intervention by the federal courts, Texas will continue its pay-or-stay bail practices, which in Grits' view also constitute "debtors prison" policies.

Are bodycams effective even with terrible public policies?
A big debate over bodycams is coming and it's going to be a mess. The rollout in Texas came with terrible legislation by Democratic state Sen. Royce West making it secret in many instances and difficult to get in all others, even though dashcam video from police cars has been effectively governed by the Public Information Act with no negative consequences. In practice, bodycams are used far more often to accuse defendants than to hold officers accountable. Indeed, Texas law says officers can view the video with their lawyers before talking to their supervisors about what happened when they're accused of misconduct so that they can craft their story to fit the facts. Criminal defendants, of course, would never be afforded such a privilege. And yet, police officers knowing their actions are being recorded still appears to be having an effect. A new study from the Urban Institute found that people expressed greater satisfaction in encounters with officers who wore body cameras, even when they were unaware of the cameras! So is it worth it despite the one-sided secrecy? Maybe, with caveats. But the secrecy still sucks.

When does Tazing become assault?
An Austin police officer was given a 20-day suspension for Tazing a suspect after the man was handcuffed and not resisting. The officer will undergo a psychological assessment and be placed on probation for a year. A question for the peanut gallery: Is there any good reason why the officer should not have been charged with assault in addition to the department's administrative punishment?

Will more training get Houston lawyers to take indigent criminal cases?
The South Texas College of Law in Houston received a fat $1.27 million grant to train local criminal defense lawyers. From Texas Lawyer:
The school said that in 2016, 451 attorneys accepted about 70,000 indigent appointments of counsel in the district and county courts in Harris County. The top 10 percent of these attorneys accepted indigent court appointments for more than 375 cases each over the course of the year. A report issued by the Texas Indigent Defense Commission in January 2015, "Guidelines for Indigent Defense Caseloads," suggests an indigent defender's annual caseload should be closer to between 77 and 236 cases, depending on the level of offenses handled. 
To join Harris County's list for indigent appointments in criminal court, an attorney must have at least four years of practice experience in criminal law, with at least four felony jury trials acting as lead attorney, that are tried all the way to verdict, the school said. The experience requirements have led to the creation of an exclusive list of older attorneys, with younger one disillusioned with the process, the school said. "Clearly, the system is broken," said [Catherine Greene Burnett, vice president, associate dean and professor of law at the school], noting that the Harris County Public Defender's Office can only reasonably handle about 9 percent of indigent cases.

Keller exoneration a warning parable about witch hunts

Congratulations to Fran and Dan Keller - an Austin couple accused of performing Satanic rituals and sexually abusing kids at their daycare a quarter century ago - on their formal exoneration nearly 30 years after their original false convictions.

The couple was released in 2013 and in 2015 their convictions were overturned. But the Texas Court of Criminal Appeals denied the couple actual innocence relief.

The difference came with a change in leadership at the Travis County DA's office. New DA Margaret Moore reversed her predecessor's stance and agreed to an actual-innocence finding, which is an alternative path to exoneration created by the Lege when Anthony Graves was exonerated but denied compensation because of the CCA's narrow definition of "actual innocence."

The CCA could have refused the agreement, but thank heavens they did the right thing and ratified it. It's long past time to make amends for one of the darkest, most surreal episodes Texas' justice system has seen in many a year. The outcome means the Kellers will each receive $80,000 per each year they were incarcerated, as well as a like amount distributed to them through a lifetime annuity.

In the wake of this happy news, the Dallas News editorial board took the opportunity to warn its readers that Texas and the nation still face dangers from "witch hunts" in the 21st century. Their editorial concluded:
All this matters, because new generations ferret out witches of their own. 
We are witness now to the blanket demonization of Muslims, of immigrants, of black drivers shot during police stops. And too often we rationalize our indifference with "better safe than sorry," or "if you didn't do anything wrong, there's no reason to worry." 
Try telling that to the Kellers.

Texas police almost never punished when they break rules and kill people

An Austin Statesman investigation found that police officers in Texas are almost never prosecuted or fired when they shoot people, even when their failure to follow department rules results in unnecessary deaths. Of the 289 shootings they examined since 2005:
even when officers violated use-of-force policies – using banned tactics, for example, or failing to promptly summon medical help for an injured prisoner — it was rare for them to be charged with a crime. Over the past decade, it happened just a handful of times, a six-month investigation by the American-Statesman has found. It was equally uncommon for officers to face discipline from their departments, such as suspensions or reprimands. 
Instead, their actions are often ratified by supervisors or fellow officers tasked with investigating such in-custody deaths and who often focus more on the conduct of the suspect than police. Similarly, prosecutors in many instances appear to rubber-stamp investigations, infrequently seeking an outside review from a grand jury, even when they have evidence of a possible crime.
In related news, the Dallas DA said Mesquite police officers committed crimes when they Tazed a young man in the testicles who later died from injuries caused from bashing his head inside a police car as he thrashed about. But prosecutors waited until the statute of limitations ran out so no one will be prosecuted. Typical.

Wednesday, June 14, 2017

Blessed are the Poor: Examining opposition to debtors-prison legislation

Texas State Sen. Paul Bettencourt was quoted by the Associated Press (June 11) criticizing debtors-prison legislation (SB 1913) which he and five others voted against in the senate. He:
said that it did not adequately consider “personal responsibility” and that it provided too much leeway for judges to waive fines. 
“Current law already allows a court to work with indigent defendants who are truly unable to pay court imposed fines,” said Bettencourt, a Houston Republican.
Let's flesh this criticism out. Here's what the bill does that Bettencourt is criticizing:

Under current law, if a defendant is indigent and unable to pay a Class C misdemeanor fine, the judge cannot waive the fine or authorize community service at sentencing. Instead, insensibly, they must order the indigent defendant - whom everyone in the room knows cannot afford it - to pay the full fine, anyway. This judicial fiction drags the process out for weeks or months while everyone waits for the inevitable default.

Then, at that point, if the defendant comes back into court, the judge may waive fines and/or order community service. But many defendants are afraid to return to court for fear of being jailed. Often, warrants are issued instead and the defendant doesn't come back to court until the next warrant roundup or when they're pulled over at a traffic stop. The Office of Court Administration's David Slayton told the AP, “Our belief is that people don’t go to court because they think they’ll automatically get jail time if they can’t pay.”

So when Sen. Bettencourt says, "Current law already allows a court to work with indigent defendants," he's leaving something out: The law actually forbids judges from working with defendants at sentencing, insisting they must impose fines even when the debtor cannot pay. The extra leeway he deplores giving judges would simply let them waive fines and impose community service at sentencing instead of waiting for an all-but inevitable default. The former Houston Controller's Harris County Tax Assessor's goal appears to be to drag the process out so the state can bleed every last dime out of indigent defendants before granting them constitutionally mandated relief. That's cruel and pointless.

Once Class C defendants default, it's true, the court is authorized to "work with" defendants down the line if they do not pay up. But Bettencourt's preferred status-quo approach needlessly extends by weeks or months a process that should take a single hearing. Moreover, it results in many thousands of arrest warrants for indigent defendants who default on a payment plan, and is an affront to common sense and judicial economy. The governor should sign this important bill.

MORE: See an op ed from College Station municipal judge Edward Spillane and former District Judge John Delaney in support of debtor-prison reform legislation. Here's a notable excerpt:
In Texas, fewer than 2 percent of all cases in municipal and justice courts are currently resolved with community service. One in every eight cases is resolved at least partly with jail credit. It is better for communities if people to have more access to community service and avoid going to jail just because they cannot afford to pay a ticket. 
SB 1913 will also ensure that in circumstances where it’s appropriate, judges no longer should wait for a defendant to default on debt before considering whether to waive some or all of what is owed. 
Texas has a well-earned reputation for being tough on crime — but that doesn’t mean we should be putting people in jail because they simply don’t have the money to pay their court bill. We need to be tough and fair. SB 1913 doesn’t mean giving anyone a hand out; it means tailoring sentences and allowing people who can’t pay their bills to work it off in another way. 
SB 1913 will also save Texas cities and counties money. When someone is put in jail for nonpayment of a fine or fee, we all end up footing the bill. This legislation will make it less likely that people go to jail for failing to pay and more likely that they will comply with their sentences. If judges can work with people on plans that make sense for their individual circumstances, they won’t end up in jail — and taxpayers won’t need to be charged for their unnecessary jail costs.
SB 1913 will also decrease the amount of time and energy that peace officers spend tracking down people for unpaid traffic tickets by reducing the number of warrants for unpaid tickets. Currently, 95 percent of the warrants issued in Texas come from fine-only cases, most of which stem from traffic tickets.
NUTHER UPDATE (6/15): This legislation was signed today!! 

Tuesday, June 13, 2017

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

Monday, June 12, 2017

Governor signs omnibus innocence bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:
[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations.  Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup.  Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it.  And, they have to do it every time.  So, it’s a big deal for Texas.
The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime.  And, they testify to this confession.  So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense.  So, it is highly unreliable information to begin with.  And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit.  And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.

Junk-science based false convictions in Houston lampooned by comedian

Someone has finally grokked and managed to convey in an accessible, understandable way the unmitigated travesty of justice surrounding drug convictions based on junk science in Houston. Comedian Samantha Bee aired a devastating 7-minute segment on false convictions in H-Town based on flawed drug field test results.

Grits has covered it. The Austin Statesman has covered it. Pro Publica and the New York Times Magazine have covered it. But no one has so succinctly captured the full scope of how these innocence claims play out in a corrupt system that railroads poor, innocent defendants better than this piece from Bee's show Full Frontal. Go figure.

This story has implications far beyond the borders of Harris County, or even Texas, as these field tests are used all over. And in some jurisdictions, if a defendant pleads guilty like one of the men in this story, crime labs don't always perform the followup test because of backlogs and cost constraints. So the most amazing part isn't the disparate treatment between the two defendants, but that these false convictions were ever brought to the light of day at all. Give it a watch, they did a great job with it:

Kudos to Inger Chandler from the Harris DA Conviction Integrity Unit and James Miller of the Houston Forensic Science Center (the bowtie was a nice touch) for their frank assessments of the problems with these commonly used instruments of junk science, which have caused an eye-popping number of false convictions. And that's just the ones we know about. They've only just begun to address the problem in Houston and no other jurisdiction in Texas is undergoing a similar review of cases based solely on field tests.

Four final notes: 1) It's a sad commentary on the state of Texas journalism that no outlet in this state ever told this story in such a compelling fashion, though all the pieces were there long before a comedian from Canada picked it up. Texas broadcast journos need to pick up their game. 2) The point about differences between outcomes for poor defendants and those with means plays out in every type of case, not just ones where the defendant was framed falsely convicted. 3) Shouldn't police departments just stop using field tests until the science behind them improves? And 4) the story speaks to the tremendous importance of the work at conviction integrity units. They only exist in a handful of DA offices, but they're exposing flaws in the system that we know also occur elsewhere. Like in this story.

Watch this excellent video clip and share it. Great stuff.

MORE: Two things: 1) it should be mentioned that, hours after I posted this, the governor signed HB 34 which includes a requirement that the Forensic Science Commission study the field test issue and report back to the Legislature by Dec. 1, 2018. Grits will try to cover this process, but I'd hope the MSM will, as well. 2) Nicolas Hughes, the lawyer at the Harris County Public Defender Office responsible for filing habeas writs in these cases, emailed these thoughts on the use of unreliable field tests:
Questions regarding the war on drugs aside, field testing presents a complicated problem. I’m all for the preliminary drug tests over the alternative – the officer’s hunch.

The question to me is what does the criminal justice system do with the information it gets from the preliminary drug test, knowing that the information is imperfect? Given that there’s a non-negligible chance that the test result will come back negative or at least differently than expected, I would hope that people would be released on PR bonds and/or a citation at least until a confirmatory test came back. I would also hope that officers receive some annual training on the tests and that agencies implement some quality assurance programs involving the tests.

Saturday, June 10, 2017

Gov. Abbott mistakes incarceration smell for "freedom"

Governor Greg Abbott made a speech in Bell County recently declaring that, as one drove north out of Austin, one could notice a different smell, which he declared was the smell of "freedom."

Let's interrogate this for a moment: In 2014, Bell County had 30.3 prison admissions per 10,000 residents, compared to 21.1 in Travis County. (Source.) One county north, McLennan County had a incarceration rate of 48.1 prison admissions per 10,000 that year, more than double Travis County's rate. Going one county further north up IH-35 to Hill County, we get to an incarceration rate of 71.2 per 10,000 people.

So seemingly there's less freedom - in terms of higher percentages of the public being incarcerated - not more, as one heads north from the Austin metro area.

Unless we're defining "freedom" in essentially Orwellian terms to mean the opposite of the dictionary definition (which includes "the state of not being imprisoned or enslaved"), what Gov. Abbott was smelling clearly wasn't "freedom."

Unanswered questions about law-of-parties beyond death penalty

In our podcast the other day, Texas Defender Service Executive Director Amanda Marzullo estimated that 10 percent of death-row defendants were convicted under the law of parties, and discussed the absence of data about how often the law-of-parties doctrine is used in cases involving lesser punishments.

Besides the implications for lower level offenses, which Mandy ably discussed in the podcast, that estimate/observation raises another question to which she did not immediately have an answer: What is the proportion of law-of-parties cases among defendants accused of capital crimes who ended up sentenced, usually via plea bargain, to life without parole (LWOP)?

Grits has never been a fan of Texas' LWOP statute, having believed from the beginning that life with the possibility of parole after 40 years should have still been a possibility. (Most capital defendants are REALLY young.) But if it turns out that law-of-parties convictions happen at a higher rate than among death sentences, it could indicate weak cases are being overcharged and pled.

Certainly we also need to know more about the extent of law-of-parties convictions in non-capital cases - this is a serious shortcoming in the available data, which Mandy says can't be shown without reading trial transcripts. That means it can't be shown at all from the public record when there's a plea deal!

Law-of-parties convictions inherently deserve extra scrutiny, and not just in the capital context. After all, these are cases where defendant's direct culpability could not be proven but the punishment is the same as those for whom culpability is unquestionable.

This is an area which would benefit from an interim study by a legislative committee or advocacy group. But it's a big task. If law of parties cases are resulting in significant numbers of people being convicted who would not be if prosecutors had to prove all the elements of the crime they're accused of, that could be a large enough issue to affect population levels in the medium to long term. So there are reasons to reconsider these questions related to both equity and economy.

Thursday, June 08, 2017


The headline from the Victoria Advocate declaring that the Texas Legislature prioritized mental health treatment over incarceration is almost Orwellian.

The bill they're touting will add $18 million or so statewide for mental health treatment over the next biennium. The prison system's biennial budget tops $7 billion.

Tuesday, June 06, 2017

Just Liberty post-session roundup podcast

Here's the latest Just Liberty podcast - this time reviewing criminal-justice reform legislation from the 85th Texas Legislature - featuring your correspondent and Texas Defender Service Executive Director Amanda Marzullo. Find a transcript of our conversation below the jump.

Court trends advise tempered enthusiasm for HB 34 eyewitness ID reforms

Does this sound like a suggestive photo array to put before a witness?

A witness described being robbed at gunpoint by a “[b]lack male, around 6-foot tall, 160 to 170 pounds, wearing a red hoodie and dark pants.” A suspect is arrested who wasn't wearing a red hoodie but had one in his bag. In the photo array shown to the witness, the suspect was wearing a red hoodie but the others were not. The witness picked out the suspect, but on cross-examination admitted her "best memory" of the defendant was of his red hoodie. On re-direct, the prosecutor gets her to say she clearly remembered his face as well and that was the basis of her identification.

This is the kind of suggestive lineup that, when your correspondent was Policy Director for the Innocence Project of Texas, we found to underlie false convictions of exoneree after exoneree. But the Fourteenth Court of Appeals found that lineup was permissible in Fisher v. State. And though IANAL, Grits considers it perfectly in line with Texas Court of Criminal Appeals jurisprudence on the topic. They've created a five pronged balancing test and flagrantly ignoring one of the prongs is generally outweighed by even minimal compliance with the others.

That's what makes Grits pessimistic, sad to say, that changes to the law passed this session regarding eyewitness identification standards will keep questionable IDs out of the courtroom. As Elizabeth Loftus, a pioneer of experimental research on eyewitness identification, wrote in her classic text, Eyewitness Testimony (p. 9): "Juries have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence." That's been true of several prominent Texas exonerations in which jurors believed erroneous eyewitness testimony over valid alibi testimony. So keeping flawed and biased eyewitness testimony out of earshot of jurors is the only real way to prevent the error.

Under HB 34, the model policy recommended to Texas law enforcement agencies would require that photos in a lineup array:
(i) are consistent in appearance with the description of the alleged perpetrator that was provided by a witness; and
(ii) do not make the suspect noticeably stand out;
But that's only a recommended policy, they're not obligated to adopt it. And as the 14th Court of Appeals pointed out, "the clear weight of Texas authority" leans toward allowing identifications into evidence, even when lineups exhibit those obvious flaws. In Fisher, the defendant was the only person in the lineup wearing a red hoodie similar to the one described by the witness in a statement. Indeed, since he wasn't wearing the hoodie when he was arrested, police appear to have had him put it on for purposes of taking the photo. So making the subject stand out because of the hoodie may even have been intentional. No matter. Though IANAL, Grits sees nothing in HB 34 which would cause Texas courts to begin excluding testimony based on these sorts of flawed ID practices.

The Texas District and County Attorney Association's brief commentary on the case demonstrates how easy it would be to avoid these problems:
Good procedures at your jail can ensure that the photos used in lineups aren’t subject to attack this way. The modern trend seems to be the use of a towel or smock to ensure that witnesses don’t fixate on the shirt worn by the suspect.
Even so, the Court of Criminal Appeals has balked at excluding testimony based on suggestive IDs, despite evidence that they underlie so many false convictions. And the Legislature has refused to put teeth into eyewitness ID reforms by applying Texas' statutory exclusionary rule when proper procedures aren't followed. So Texas courts go forward knowing that some percentage of erroneous IDs and false convictions could be prevented if the Legislature or the CCA would just put their foot down.

Making it all advisory, suggested policies, etc., without having the exclusionary rule apply or even requiring jury instructions when suggestive lineups are allowed into evidence means these reforms don't have a lot of teeth. One supposes they contribute to a general professionalizing trend in law enforcement, but they explicitly don't require it. And judging from the workaday ruling in Fisher v. State, the courts aren't about to do it on their own.

Wednesday, May 31, 2017

More to Do: TX decarceration reforms led to below-average reductions

Texas has received significant credit - Grits has argued perhaps more than we deserve - for enacting policies to reduce incarceration levels. But the truth is, compared to other states, our decarceration reforms have been fairly minimal and this past legislative session they essentially ceased.

Source: Sentencing Project
This new report from the Sentencing Project tells the tale: Texas incarceration rates are down 4.5% from their peak, just below the average reduction among all states (4.9%). Compare that to the states with the largest reductions in prisoner population (compared to peak levels):
  • New Jersey: 35%
  • New York: 29%
  • Alaska: 27%
  • California: 26%
  • Vermont: 25%
  • Connecticut: 22%
  • Minnesota: 17%
  • Maine: 16%
  • Mississippi: 16%
  • Hawaii: 15%
Texas could do much better.

In 2015, Texas took another significant step forward by adjusting property-theft thresholds for inflation, making them the highest in the country and significantly reducing the number of felony theft admissions. That change coupled with declining crime made it possible to close four additional prisons in the next TDCJ budget.

But this year, that progress halted. Legislation to reduce penalties for low-level drug possession and use the savings for treatment never made it out of committee. And with the exception of applying property-theft thresholds to forgery-by-check offenses - tacked on as an amendment to another bill by a liberty-minded senator in the final days of the session - further property-offense reforms all died in the House Calendars Committee, like so many other reform bills before them.

Texas' claims to modeling decarceration among states are now outdated. The "Texas model" - touted by our friends at Pew's Justice Reinvestment project and the Texas Public Policy Foundation as a technocratic fix to mass incarceration  - is now a full decade old and has long since been surpassed by good work in other states.

Texas was "smart on crime" for a brief, shining moment, but we haven't sustained it.

Sunday, May 28, 2017

A #SandraBlandAct that omits the #SandraBland story?

Our pal Fatima Mann has an essay at Tribtalk on the Sandra Bland Act (SB 1849), coming to grips with the reality that the bill "does not speak to the case of Sandra Bland" after the Texas Senate defenestrated provisions restricting arrests for non-jailable offenses. Give it a read.

Despite the notable omission of ignoring the key issues in the Sandra Bland tragedy, the bill has some good stuff in it. Indeed, if not for the heightened expectations created by attaching Bland's name to it, it would be hailed as more significant than it seems now in the context of her terrible case. Among the bill's remaining provisions:
  • Law enforcement "shall" make a "good faith effort to divert" suspects in mental health crisis or suffering from the effects of substance abuse to a treatment center.
  • Authorizes "community collaboratives" to seek grant-funded opportunities to provide services to homeless people, substance abusers, and the mentally ill.
  • Requires the Commission on Jail Standards to create rules on medication continuity requiring jail inmates' prescriptions to be reviewed by a qualified medical professional upon intake.
  • Requires TCJS to order an independent investigation by an outside law enforcement agency whenever someone dies in a Texas jail. (Between 2005 and 2015, Texas averaged 101 jail deaths per year, with a low of 83 and a high of 126, according to the Texas Justice Initiative.)
  • Orders TCJS to create a new examination for jail administrators.
  • Requires law enforcement officers to receive 40 hours of de-escalation training (some of which is great and some of which is apologia - will require oversight) and jailers must receive eight hours of mental health training.
  • Updates racial profiling data collection to include "warnings," whether physical force was used, and report whether contraband was discovered during roadside searches. (New data collection begins in 2018.)
One quibble: Grits would rather TCJS be given investigators to review the ~101 jail deaths per year themselves instead of appointing another law enforcement agency. Other local agencies won't typically have experience performing investigations in a correctional institution, which is a different kettle of fish from investigations in the free world. The reason they did it this way is to avoid a "fiscal note," but this may be something to revisit down the line when there's more black ink in the budget.

But in all, these are significant changes. Some of them, like the improvements to racial profiling data collection, have been sought unsuccessfully by advocates for many years. This explains why Ms. Mann adopted a glass-half-full attitude in assessing why this eponymic bill is worthy of support, even without addressing the issues which caused the death of its namesake:
Although the final version of the legislation, Senate Bill 1849, may not speak to Sandra’s death, it embodies her life of wanting to make a difference for people of African ancestry. She posted videos of herself speaking on issues people of the African diaspora faced in the United States. She recorded and posted herself speaking on the need for implementing policies that protect people in the community. Sandy used her voice to speak on the need for systemic change. ... 
The final version of this legislation embodies the spirit of Sandy’s life and the work she did to improve the community. Even though the bill does not address how she died, it does embody how she lived. She did not die because she had a mental health issue, she died because she should have never been detained for committing a non-jailable offense. 
Sandy spoke into her life that she would change the world. Her words inspired a bill that will create sustainable change.

Saturday, May 27, 2017

Bad bills rising, how to tell if debtors-prison reform works, TX police misconduct roundup, and other stories

Here are a few odds and ends as the final days of the 85th Texas legislative session wind down:

Lawyers to rep Harris defendants at bail hearings
Grits is interested to learn what effect it will have when Harris County deploys public defenders to represent indigent defendants at bail hearings. It's never been done before so all the suggestions about what effect it will have remain unproven. But in theory, it should reduce pretrial detention at the Harris County Jail more than enough to cover the cost of the lawyers. Glad we're finally going to find out!

How to tell if debtors-prison reform bill works
The House concurred to Senate amendments on HB 351, a bill initially generated from a GFB blog post aimed at limiting debtors' prison practices. The amendments included a small item applying property thresholds to check forgery and another that lets probation departments use treatment beds for pretrial diversion clients.

It'll be easy to tell if the debtors prison portion of the bill works. The Texas Tribune reported that 3 million warrants were issued for fine-only Class C tickets in 2015. However, "judges rarely used community service to resolve 'fine-only' cases – just 1.3 percent of the time. In fewer than 1 percent of cases, they waived fines or reduced payments owed because the defendant couldn't afford to pay." If those numbers don't increase substantially, and the warrant numbers don't go down, then the Lege will need to come back in 2019 to beef up protections against jailing indigent drivers. But this is a start.

Bad Bills Rising
Among bad bills passing this session, there was a massive "hate crimes"/enhancement bill for assaults against police that Grits has argued will increase pressure on defendants to plea guilty to false convictions based on police misconduct. The Lege also approved a strange little bill creating a specialty court for prosecuting police officers, treating active duty cops like veterans eligible for veterans court services. Both of these are bad ideas, reduce accountability for police, and deserve to be vetoed, though neither probably will be.

Fed $$ coming to prevent opioid deaths
Texas will  receive money to combat opioid-related overdoses, despite Gov. Abbott vetoing life-saving Good-Samaritan legislation in 2015 and moving the goalposts to stymie the bill from passing in 2017. Reported the Austin Statesman:
The Texas Health and Human Services Commission on May 19 announced that Texas would receive a $27.4 million federal grant to combat opioid-use disorders. 
The increasing rate of opioid use continues to be an issue nationwide, and of the more than 33,000 opioid-related deaths in the U.S. in 2015, 1,186 were in Texas. The grant funds will be used for prevention, training, outreach, treatment and recovery support services and will directly help an estimated 14,000 people over a two-year period, according to the agency.
Texas police misconduct roundup
While I've got you, here are a few stories related to police accountability which merit Grits readers' attention:
  • Eva Ruth Moravec has perhaps her best feature yet at Point of Impact documenting Texas law enforcement shootings of unarmed people, this time a black man in Carthage who was shot seven times, five times in the back, by a DPS trooper. He was one of seven unarmed black men shot by Texas law enforcement last year. Scroll down to the end of her article for extensive backup documentation from the story. 
  • The mother of an unarmed man shot to death by police in Laredo says police are lying about what happened during the incident.
  • A video has surfaced showing a San Antonio police officer hitting a teenage girl. See the SA Express News coverage
  • Cell phone footage also captured a Lampasas Sheriff's deputy punching the hell out of an 18-year old suspect at a traffic stop.
  • A young woman who is currently Miss Black Texas and an intern at the Hunt County DA's Office has accused the Commerce police chief of arresting her after a motorist called her a "black bitch" in a road rage incident. Initially, she thought the chief was the driver, but he was the arresting officer. Regardless, by all accounts he took her in for evading arrest because she refused to apologize to the racist who berated her and tried to walk back to her car. What an embarrassment.
  • In Baytown, an officer is under investigation for soliciting nude photos from female drivers in exchange for letting them off of traffic tickets.
  • In Fort Worth, two police commanders were demoted for allegedly releasing bodycam video made secret under a bad 2015 Texas law. They claim they've done nothing wrong. The CATO Institute has commentary on what the punishments say about police priorities.
  • Another leaked bodycam video shows that the Balch Springs officer who shot Jordan Edwards previously tasered a handcuffed man. Police are investigation the leak, instead of investigating how such a person was retained on the force after such behavior.
  • An SAPD officer was suspended 45 days for disabling his bodycam and one additional day for telling a crime victim that police officers "hate citizens."
  • An Ector County Sheriff's deputy pled guilty to tipping off a game room operator about investigations and raids.
  • In San Juan, a police officer was arrested for stealing three packages of cocaine from a drug bust. See the federal criminal complaint against him. His partner was arrested last month for allegedly lying to the FBI about the missing evidence. 
  • See Texas Tribune coverage of new legislation punishing law enforcement agencies which don't report officer-involved shootings to the AG with a $1,000 per day fine. Criminal penalties for failing to report incidents to the Attorney General's death-in-custody database - including about 25% of police shootings over the last decade - have never been used.

Wednesday, May 24, 2017

Dead hostages, live hostages: Wading through the wreckage at the end of session

Grits will perform a more comprehensive roundup of what happened in the 85th Texas Legislature later, but here are a few quick updates from an eventful week:

Dead hostages, live hostages
In the battle between House and Senate leadership, each killed a hostage, and let a few others live. Among the departed: Lt. Gov. Dan Patrick never referred HB 122 which would have raised the age at which youth are charged as adults for crimes from 17-18 years old.

In apparent retaliation, the major bail reform legislation passed by the Senate and championed by Texas Supreme Court Chief Justice Nathan Hecht died in the House Calendars Committee, though clearly if House leadership had wanted to give it a floor vote, there was time for it to get one.

Other hostages, though, were allowed to live. HB 34 - a watered down version of the "innocence" recommendations from the Timothy Cole Exoneration Review Commission, passed late last night. Reading tea leaves, the hostage was apparently freed from its shackles in exchange for the House bringing the senate's debtors-prison legislation on the floor (although who really knows what politics underlie these subterranean disputes?).

Grits fails to understand how criminal-justice reform legislation became part of the political football being played between the chambers. These are all bipartisan bills with wide support, both the hostages that were killed and the ones allowed to live. But whaddya gonna do?

Kid Stuff
Another good bill passed yesterday - HB 674, eliminating out-of-school suspensions for pre-K to second graders. Research shows a strong linkage between such early suspensions and the likelihood youth will drop out of high school or commit crimes in the future. So while it looks like an education bill, to Grits it's juvenile-justice legislation.

Democrats Eric Johnson and Sylvia Garcia did a great job of building bipartisan support for HB 674 in both chambers, and Texas Appleseed's Morgan Craven did an amazing job shepherding the various bills on the topic through the process. This is a nice vindication for Appleseed's work; they have been running local campaigns to get large ISDs to adopt this policy and now it may become the law of  the land.

A responsible killing for Driver Responsibility "reform"
The Driver Responsibility surcharge was the last, big, extant criminal-justice legislation this session, but the Phillips-Miles Tariff now appears dead. HB 2068 was pulled from the senate intent calendar yesterday, after leadership refused to accept a version of the bill suggested by Sen. Miles with ameliorating amendments.  Rep. Larry Phillips had earlier blamed our friend Emily Gerrick from the Texas Fair Defense Project for the bill's struggle in the Senate, berating her in a couple of angry phone calls. (Henceforth she shall be known as, "Emily the Terrible: Killer of Bills.") Others credited blamed this blog's coverage for derailing the legislation, which had backing not just from the greedy hospital lobbyists seeking extra funds but also from ACLU and reformers at the Smart on Crime Coalition. (You can imagine how upset I was at their disapprobation. 😢)

The hospitals would have gained a bunch of extra money if this bill passed, but it would have been raised on the backs of indigent drivers. The new fines amounted to an attack on the poor and would have the unintended but entirely foreseeable consequence of initiating a debtors-prison nightmare for hundreds of thousands of people. Bottom line: The bill was a piece of junk and the Legislature can do better. They'll get another chance in 2019.
* * *
Beyond the above-mentioned legislation, four more prisons closing, and the modest but important Sandra Bland Act (that lacks key reforms which would have saved her life, but could save the lives of others), not much reform legislation passed this year. But then not much of anything passed of import, on any topic. All the important issues facing the state were put on the back burner in 2017 in favor of culture-war debates over bathrooms and nativist posing over immigration. Presumably, they'll get around to governing the state at some point in the future.

Great reporting on police shooting issues

Here's an update from Eva Ruth Moravec on the latest from her Point of Impact series reporting on Texas police shootings of unarmed people:
My latest shooting profile hit Texas newsstands and websites this past week and tells the story of the February 2016 fatal shooting of Calin Devonte Roquemore in Beckville. This story required an immense amount of reporting, and I hope that on-the-ground digging is apparent to readers. Read the story on the series' website (ed. note: scroll down for underlying documents from the case), in the Houston Chronicle, Austin American-Statesman or the San Antonio Express-News. And on Point of Impact's YouTube channel, you'll find the dashcam footage and audio of the February incident, and footage from a more peaceful interaction between Roquemore and the same officer.

At the Capitol - and now heading to Gov. Greg Abbott's desk - is Democratic Rep. Eric Johnson's HB 245, which would fine law enforcement agencies that don't properly report their shootings to the Attorney General's office as state law requires. Earlier this year, I reported that a dozen fatal shootings of and by Texas officers weren't properly reported to the state. If the data collected and disseminated by the state is incomplete, experts cannot depend on it for accurate analysis.

The proposal would impose $1,000-per-day fines on agencies whose reports are not filed within one week of receiving a warning from the AG's office. It removes the requirement for law enforcement to post their reports on their own websites and delays the deadline by 30 days that the AG's office must submit an annual report on all reported shootings. The bill actually died in the House, but was resurrected and passed at the last minute. The Senate passed it after omitting a data portal with an interactive dashboard that was estimated to cost $1.15 million through 2019. Now that it's passed both chambers, the bill now awaits Gov. Greg Abbott's signature.

Monday, May 22, 2017

Debtors prison legislation pulls off miraculous resurrection, or, How Senfronia Thompson saved Nathan Hecht's debtors-prison bill

What an amazing turnaround on Texas debtors-prison reform legislation, SB 1913, which this afternoon first failed on a 64-77 vote, then prevailed a couple of hours later on a motion to reconsider by a whopping 100-31 margin.

The turnaround was a huge parliamentary feather in the cap of House bill sponsor Senfronia Thompson, who ironically with her victory saved the signature legislation of the session proposed by Texas Supreme Court Chief Justice Nathan Hecht and the Texas Judicial Council, at least now that the bail-reform bill is dead.

Congrats to everyone involved in the furious behind the scenes effort to whip votes, and thanks to the House members who changed theirs. Special kudos to our friends at the Texas Fair Defense Project who spearheaded the vote counting and office-by-office advocacy during the tense stretch between the bill's untimely death and its miraculous resurrection.

This legislation is essentially similar to HB 351, discussed on Grits here, with a few extra bells and whistles thrown in. Given how many good reform bills have died this session, pulling this one out of the hat was a major victory.

UPDATE: This bill finally passed on a 75-70 vote. They lost 25 votes on third reading because the author accepted amendments weakening the bill and grassroots Republicans rebelled, preferring new debtors prison protections not be weakened. Judging from the floor debates and the tenor of the vote, the bill would have passed by a greater margin without the amendments.

Sunday, May 21, 2017

Replacing 'Driver Responsibility' fee with Phillips-Miles Tariff replicates worst features of a flawed system

Let's crunch a few numbers regarding the proposed "repeal" legislation for the Driver Responsibility Program (DRP), which Grits earlier suggested is barely an improvement, if at all.

The bill adds $20 to every traffic ticket, creates a new $3,000 fine for DWI on top of existing penalties (which already include a fine of up to $2,000 on a first offense), and adds $750 to tickets for no insurance. Under the DRP, these costs were spread out over three years, but now they're criminal fines due upon conviction.

This additional levy is particularly counterproductive since, for most people, a no-insurance ticket amounts to a poverty crime. If the offender had $750 to pay, public safety would benefit more if she were required to buy insurance than to pay that much in a fine. But if they can't pay for insurance, how can they be expected to pay that big a fine? None of it makes sense.

As a practical matter, the no-insurance tariffs are essentially similar to the penalties under Obamacare for people who don't buy health insurance. Except Texas law provides no subsidies for low-income people to pay for insurance like the federal health care statute.

So, will people be able to pay these massive new levies, which all parties agree are being created for the purpose of revenue generation, not public safety or good government? Even bill proponents don't think so!

The fiscal note for HB 2068 estimates that the new fines will be applied to 82,000 DWI cases and 444,000 no-insurance cases in the first year of implementation. At $3,000 per DWI and $750 per no-insurance ticket, that generates a gross annual debt obligation of $825 million.

However, the Legislative Budget Board estimates that the "new fines and their proposed allocation would generate an estimated $266.2 million in revenue in the 2018-19 Biennium, which would be equally divided between Account No. 5111 and the General Revenue Fund." That's a two-year number. So taking $133.1 million in revenue per year and dividing by $825 million, the state is estimating only 16.1 percent of these fines will be paid!

To repeat, this legislation is being pushed with foreknowledge that most people (83.9 percent) hit with these fines cannot pay them and may end up with warrants issued for their arrest, their driver licenses revoked, etc.. That's more than 440,000 people per year statewide being knowingly condemned to a debtors-prison cycle by this legislation.

Even with such high levels of nonpayment,  the bill ultimately produces more money for trauma centers than the DRP, so arguably the hospitals will be even more reliant on debtors-prison funding than they are now.

That such an outcome could possibly be considered an improvement over the DRP only shows how absurdly flawed the program is now. The good part of this bill is that it eliminates past surcharges, so hundreds of thousands of people will get their licenses back and finally shake off manacles of debt which may be more than a decade old. That's the bill's big selling point - really its only selling point - and it's a tempting benefit. This writer has been calling for DRP repeal and amnesty for many sessions now.

But hundreds of thousands of Texans will rack up new debts almost immediately under what will be known at the "Phillips-Miles Tariff" (for the House and Senate authors of the bill). The situation would be ameliorated somewhat if the bill authors would allow amendments to add an indigence waiver, like the DRP had, and if the bill limited driver-license suspensions to two years, as proposed under HB 74.

Indeed, because the Phillips-Miles Tariff replicates the DRP's structure as new criminal fines, these suggestions are even more important. Otherwise this is quickly going to become a huge source of unnecessary, extra arrests, with all the associated police and jail time wasted on people we already know can't pay. (This expectation of widespread nonpayment is already worked into the fiscal note assumptions.)

With accommodation for indigence and a limit on the length of driver-license suspensions, one could probably make the case that HB 2068 is a marginal improvement over current law, though it's still a fatally flawed system. Without those fixes, Texas and Texas' hospitals are committing to a debtors-prison model as our best and only solution for funding trauma centers, and that's no solution at all.