Thursday, March 22, 2018

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

One of Grits' favorite pastimes is parsing contentious Texas Court of Criminal Appeals decisions to better understand the dynamics and factions arising on various topics. Since nobody in the mainstream media routinely covers these cases, this usually involves tilling virgin soil. And such is the situation with Ex Parte Jeremy Wade Pue, which was decided on March 13 but has been ignored in the press. Mr. Pue was represented by an attorney from the State Counsel for Offenders.

Judge Bert Richardson wrote the main opinion, with Judges Mary Lou Keel and Sharon Keller authoring concurrences and Judge Kevin Yeary isolated by himself in dissent, which is a space he's increasingly chosen to occupy in recent cases. To me, this is perhaps the most significant change in the court's dynamic in the wake of the 2016 election, when Judges Keel and Walker joined the court.

While on capital cases, Judge Yeary has tended to be more defense-oriented, in more workaday cases he has proven himself a tuff-on-crime outlier, even compared to the Government-Always-Wins (GAW) faction, led by Judge Keller. Indeed, Yeary's pro-prosecutor stances are sometimes so extreme that even the traditional GAW faction members (Keller, Hervey, and Keasler) cannot abide them. That's what happened in Pue, where the state sought to uphold a 30-year sentence which, in light of the facts, clearly was improper.

The case involved an illegal sentence for evading arrest with a vehicle, which in Texas is a third degree felony punishable by 2-10 years. Two California cases were used as an enhancement under Texas law to increase the penalty to thirty years under the habitual-offender statute. But the California convictions were not "final," as required by Texas law, and the defendant's lawyer failed to appeal the issue. (Mr. Pue separately has also alleged an ineffective assistance claim.) The CCA majority said the sentence was illegal, and even the GAW faction agreed.

Judge Yeary would let the sentence stand, insisting the claim should have been raised on direct appeal and should not be alleged for the first time in a habeas writ.  Moreover, he made a distinction (which Judge Keel rightly considered spurious) between a sentence outside the prescribed range (for example, a life sentence for a third degree felony where the max should be ten years), and illegally using a prior conviction to increase the penalty outside the prescribed range. Keel called out Yeary for "inconsistent" reasoning, and he tried to respond in a footnote. But when you read them both, it's pretty clear she's right and he's confused. Even Judges Keller and Keasler thought so.

Further, Judge Keller believed Pue's lawyer performed ineffectively:
Because the conviction was not final regardless of what law applies, and because Applicant has no other prior convictions (aside from the two in California), I would hold that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.
Keller believed Pue's lawyer's performance was deficient on its face ("Given the circumstances, I would hold that there is no conceivable strategy for failing to challenge the prior conviction, and so, there is no need to remand for factual development.") Judge Richardson and the majority, however, noted that the issue was raised at trial and he was reluctant to allege ineffective assistance for not doing so on appeal because "there were existing intermediate Texas appellate court decisions to the contrary" about whether California or Texas law controlled which offenses could be used for enhancements. (Going forward, the answer is "Texas'.")

As case law, Pue does little more than confirm common perceptions about which cases qualify for an habitual-offender enhancement. But it certainly reveals telling dynamics on a court suffering from strained personal relations and often-bitter legal disagreements. We're beginning to see previously unplumbed limits regarding how far certain members of the court are willing to go just because a prosecutor asked them for something.

Will Judge Yeary's extremist positions solidify control of the court among moderates like Richardson, staking out positions so harsh and unyielding that they drive even the GAW faction toward more centrist stances? Time will tell but, to this observer, that looms as an increasingly likely (and admittedly unexpected) possibility.

Tuesday, March 13, 2018

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

Let's add a few items to Grits' reading pile, and perhaps to your own. First,

On pretrial detention
On Prosecutors
David Alan Sklansky says the least understood "problem with prosecutors" is the ambiguity of their role. Here's a brief item on "Post-conviction Prosecutorial Duties."

On Forensics
Brandon Garrett and Chris Fabricant analyzed 229 Daubert rulings (admitting scientific or expert evidence) purporting to assess the "reliability" of forensic evidence and found that the "reliability test" is seldom applied and almost never used to exclude potentially unreliable testimony.

On Instructing Juries
See an interesting proposal for fixing known flaws in common jury instructions surrounding "beyond a reasonable doubt" by articulating for their jury their relative strength compared to lower burden-of-proof thresholds, like "preponderance" or "clear and convincing."

On the Fourth Amendment
The title evokes one of the most vexing legal questions of the digital age: "The Third Party Doctrine and the Future of the Cloud." Can't wait for Carpenter to come out!

On Plea Bargains
A coupla items here:
On Competency Restoration
This was a long-time Grits hobby horse to which of late I haven't had the bandwidth to pay much attention. But I've long been a fan of at least testing outpatient models - mainly as an expression of my lack of confidence that the Texas Legislature will ever sufficiently fund forensic beds at state mental hospitals - and have regretted that Texas never doubled down on that strategy after testing it in pilot programs. So I'm interested to read this academic offering from Susan McMahon out of Georgetown Law titled, "Reforming Competence Restoration Statutes: An Outpatient Model." Texas' failed system for competency restoration at state mental hospitals has been underfunded to the point of crisis since at least the earliest days of this humble opuscule. Maybe she can point to a better path.

Monday, March 12, 2018

Pop quiz on forensics

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

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

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

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

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

TDCJ Youthful Offender Program accused of 'culture of cover-up'

Readers will recall that, after more staff-on-youth sex-assault scandals were uncovered at Texas Juvenile Justice Department facilities, the new executive director immediately sought to certify 35 youthful offenders as adults and send them to TDCJ, even though staff, not inmates, had caused all the scandals that forced her predecessor's ouster.

So where did she want to send those 35 kids? To the Youthful Offender Program at TDCJ. And now Lauren McGaughy at the Dallas News - in a story called, "'Culture of Coverup': Warden forced to retire from prison where whistleblower says teen inmates abused" - has pulled back the curtain on how youth are treated there, thanks to the diligent reporting of misconduct, abuse, and neglect by a now retired program supervisor* who formerly worked there. Read the whole story, excerpts won't do it justice. TDCJ has fired the warden and moved the youth to a unit in Huntsville.

What does it say about the state's priorities that, rather than solve problems of violence and abuse by staff on youth inmates, the first big policy shift from the new TJJD leadership was to ship off 35 kids to another environment characterized by abuse, fear, and predatory staff?

What exactly are we solving for here? Is the goal to protect the kids or to generate a headline where pols and bureaucrats can say, "We're changing something in response, so everyone can move on. Problem solved." Except the change didn't correlate to the problem and may create even bigger problems for those 35 youth.

Everyone essentially knows what needs to be done. Grits has discussed the expert consensus on the topic before (see below), and an extensive recent blog post from Texans Care for Children elaborated even more.

Bottom line, we need to move away from large units sited in rural areas far away from services and youth inmates' families and adopt the same model Gov. Scott Walker has embraced for Wisconsin, creating smaller, treatment-oriented facilities closer to urban areas following what's known as the "Missouri model." That's the same recommendation made by a blue-ribbon panel convened by the Texas Legislature eleven years ago after another sex-abuse scandal at Texas youth prisons. The National Conference of State Legislators recently issued similar advice.

Everyone basically agrees with this approach except Governor Abbott, his new appointee at TJJD, and handful of legislators. But they're the only ones who can make the necessary changes!

That's the conundrum. Fixing the problem will require spending more money on the same number of kids (or even fewer, if juvenile crime continues to go down), because there are fixed costs involved with creating a new system of smaller facilities. Plus, the current ones are understaffed, suffering from the highest turnover rate of any state agency.

(N.b., one anticipates private contractors will want in on this action, too, and state facilities have a terrible track record to try to defend, so increased privatization of youth services is likely on the horizon if reform succeeds. That would reduce the initial sunk costs but create a host of additional issues.)

We're not going to make youth safe by shipping them off to TDCJ or extending that agency's control to TJJD. Wherever they're housed, more must be done to keep youth safe from both predatory staff and from being victimized by other offenders. But the mistake in the past has been to assume keeping them safe is enough. It isn't. The system is failing on many levels and, at this point, it's hard to see the resistance to following best practices recommended by basically everybody who's deeply thought about it.

From shifting the Missouri model, raising the age of criminal responsibility from 17 to 18, etc., pretty much everyone knows what the best policies are for protecting and reducing recidivism among youth. But the policies instead are being created based on what's best for the politicians who want to avoid accepting responsibility for bad outcomes on their watch. As long as that continues to be the case, this pattern of abuse-scandal-and-blame will continue to arise every few years. Convincing the public to ignore a problem is not the same as solving it.

MORE: See Texas Appleseed's response to the latest scandal at TDCJ's Youthful Offender Program, titled, "Young Offenders Need Developmentally Appropriate Rehabilitation."

See prior, related Grits coverage:
* The original version of this post said the whistleblower was a correctional officer. In fact, she was a supervisor for a youth program.

Thursday, March 08, 2018

Texas CCA and DA election roundup

Let's update the Texas DA and Court of Criminal Appeals races we discussed in the February podcast, as well as others that deserve mention. It was a rough primary for incumbents, and a number of open seats created opportunities for outsider candidates to elbow their way past more establishment figures.

Keller narrowly prevails
First, Sharon Keller squeaked by in the race for Court of Criminal Appeals Presiding Judge, garnering just 52 percent of the GOP primary vote. She is without question the most and maybe only vulnerable statewide Republican in Texas, assuming there's any sort of "blue wave" occurring in November, as touted in the national press. If I were a Dem strategist looking for a blue victory in a statewide race, I'd be putting real money behind her general-election opponent, Judge Maria Jackson out of Houston. As my great grandfather liked to say when I was a child, there ain't never been a horse that can't be rode, never been a cowboy can't be throwed. That said, the most likely outcome is that Keller will prevail in November, and by the time her next term ends, she'd have spent 30 years as Presiding Judge of that court and the intellectual leader of what Grits has dubbed the Government-Always-Wins (GAW) faction.

Least qualified candidate emerges from GOP CCA primary, again
In the race to replace Judge Elsa Alcala, Michelle Slaughter defeated two more qualified candidates because she ran as a cultural conservative touting culture war memes and garnered the most grassroots endorsements. Grits might have preferred Jay Brandon over Dib Waldrip, but either were qualified for the spot. But for the second cycle in a row, GOP primary voters ignored the most qualified candidates and picked the person they thought was the most ideologically conservative. According to the Texas Tribune, "She was the only one of the three without a criminal appellate background, having worked in civil law before becoming a judge. But she also had the most conservative endorsements, including backing by Empower Texans, Texas Right to Life and numerous local Tea Party groups." There's no Democrat running in this race.

Progressive power remains a phantom in Dallas DA race
National liberal activists and progressive organizations which haven't traditionally participated in Texas DA races tried to play the role of Queen-maker in Big D, backing Elizabeth Frizell against liberal establishment stalwart John Creuzot. Creuzot won by 516 votes. Though it was close, the outcome calls into question the clout of liberal groups backing his opponent. Readers will recall the same thing happened in Houston in 2016, with liberal groups backing Morris Overstreet in the primary before turning to support Kim Ogg in the fall. Grits' takeaway: Criminal-justice reform continues to enjoy bipartisan support in Texas - there are strong supporters in both parties - but perhaps because it's become a bipartisan issue, it's not yet become an axis along which Democratic primary elections are decided. Creuzot won the right to face incumbent Faith Johnson in the general election. This'll be one of the state's marquis down-ballot races.

MORE: Reflecting on the race, in which he and his PAC supported Frizell, New York writer and activist Shaun King describes what it's like for a bunch of amateurs who learned about politics in books to get schooled by "crafty" Texas political consultants who understand how to "game the system" (read: run winning campaigns).  Don't sweat it, Shaun, it's how you learn. Politics here is blood sport and enthusiasm isn't always sufficient to trump skill. Besides, Creuzot is a good guy. When "progressive" Ds from out of state want to demonize someone like him in favor of a candidate whose record is more sparse and whose policy positions are essentially identical, long-time reformers like me have to wonder why we should choose to die on that particular hill? Of all the DA candidates in this roundup of whom I'd think, "We need to keep that person out of office," he wouldn't crack the top five. For instance ...

Bexar voters done with the crazy
Nico Lahood lost. Thank heavens.

Abel Reyna loses in embarrassing fashion
In the end, the Twin Peaks case cost him the race, which was won by a guy who just moved back to town from Dallas last year after 3 decades away. On the day of the election, voters awoke to headlines declaring a visiting judge had scolded Reyna thusly for using video from the case in his campaign ads:
“The way you have handled this case is absolutely shameful and misleading to the citizens of this county,” Judge Doug Shaver told Reyna on Monday. “So I know the election is tomorrow, and we can’t do anything about it up to this point. But you should be ashamed of yourself, and if I could enforce any of the gag order against you, I would and (would) put you in custody. But since I can’t, you are excused.”
And by the end of the day, the voters had excused him as well.

Tyler establishment fails to quash Tea Party insurgent
Perhaps (almost) equally significant, the establishment candidate for District Attorney in Smith County lost to a 35-year old upstart who accused the sitting DA of corruption and was backed by local Tea Party figures . Jacob Putman defeated a candidate recruited by the sitting DA and his allies to run against him, and overcame the incumbent releasing opposition materials critical of his prosecution record at the height of the campaign. This is a significant snub for the Jack-Skeen-Matt-Bingham cohort which has run the DA office there for decades in my hometown.

DWI cuts both ways in DA races
In Victoria, voters ousted an incumbent who'd sought to prove his tough-on-crime credentials by taking every DWI case to trial. Challenger Constance Filley Johnson defeated the incumbent in a campaign critical of this grandstanding brand of prosecutorial overreach, and voters overwhelmingly sided with her.

In Walker County, however, Will Durham won by running against the incumbent's First Assistant, with criticisms mainly centering around alleged leniency on DWI cases. The incumbent, David Weeks, had allowed some DWI cases to be pled down to alternative offenses,  which circumstantially points to prosecutors allowing defendants to avoid being assessed the (ignominious) Driver Responsibility surcharge. Walker County is the epicenter of the Texas prison system and the policy likely was implemented so that prison-guard employees with DWIs on their record could keep their driver licenses and be able to legally get to work. Whether getting "tougher" on these cases affects local correctional officer employment remains to be seen, but barring abolition of the surcharge, in 2-3 years it wouldn't surprise me if Durham's git-tuff policies come back to bite Walker County voters or even TDCJ itself, just as happened in Victoria.

A vote for DAs independence from law enforcement
In Fort Bend County, a 71-year old retired judge named Cliff Vacek won the GOP primary, but the real contest there will be in November, where general elections are becoming tighter and Democrats have a real shot. Debates in the GOP race centered around independence of the office, with Vacek's opponent claiming he'd have a closer relationship with local law enforcement agencies, and Vacek insisting that the DA office must remain independent, working with local law enforcement but not becoming beholden to them. Interesting terms of debate: These aren't themes which came up in the other races.

Death penalty decline an issue in Wichita DA race
In Wichita County, incumbent Maureen Shelton was ousted by John Gillespie in a campaign which centered around Shelton's reticent to pursue the death penalty, a high turnover rate among attorneys in the office, and Shelton's decision to serve as an administrator instead of personally trying cases in the courtroom.

Incumbents incumbenting
In Denton County GOP primary, the incumbent Paul Johnson defeated a challenger who'd called him soft on crime. And in Hidalgo County's Dem primary, one-term incumbent Ricardo Rodriguez easily quashed a quixotic campaign against a strident but politically isolated and self-funded challenger who'd accused him of corruption. Galveston DA Jack Roady defeated a challenger who'd accused him of being "soft on crime."

MORE: The incumbent in Gregg County (Longview) also lost, although the race doesn't seem to have been run along any reform-vs-tuff-on-crime axis, like some of the others.

AND MORE (3/12): From the Texas Tribune: "Half of Texas' sitting district attorneys in contested primaries lost. What does that mean?"

AND EVEN MORE: See a roundup of primary results for prosecutors from the Texas District and County Attorneys Association.

Monday, March 05, 2018

His chief weapons are surprise and fear

Nobody expects the Spanish Inquisition, the actors in Monte Python insisted, and Grits must admit I didn't expect Texas judges to begin adopting torturous means to extract the answers they want from defendants before them.

But then, I've never met Judge George Gallagher from the 396th District Court in Tarrant County, whose chief weapons are surprise and fear, fear and surprise. ... Live and learn.

In the category of "things that make you go 'Hmmmmm,'" here's the crux of an opinion out of the El Paso Court of Appeals
Because the trial transcript clearly shows that the trial judge, during a heated exchanged with the defendant outside the presence of the jury, ordered his bailiff to electrocute the defendant three times with a stun belt—not for legitimate security purposes, but solely as a show of the court’s power as the defendant asked the court to stop “torturing” him—we harbor grave doubts as to whether Morris’ trial comported with basic constitutional mandates. As such, we have no choice but to overturn Morris’ conviction and remand for a new trial.
See briefs from the appellant and the State for all the lurid details, and a bevy of self-serving arguments by the Tarrant DA office which the appeals court rejected. 

It remains to be seen whether the prosecution will seek review from the Court of Criminal Appeals, much less what that court might do. Grits could see a tight, 5-4 decision either way, or maybe 6-3 to uphold, just because the facts are so bad. But you never know. And depending on the outcome of the race to replace Judge Elsa Alcala, that projected vote count could change.

Friday, March 02, 2018

Texas judicial elections broken but far from radar screen of legislative power brokers

Here are a few odds and ends that merit Grits readers' attention even if I haven't found time to author full posts on the topic.

Dallas DA race coverage
InJustice Today has a good piece summarizing the race from a reformer perspective.

Texas judicial elections broken but far from radar screen of legislative power brokers
The Baker Institute makes the case against electing Texas judges. Is anybody listening? According to the author, Mark Jones, "Texas is one of only two states that initially elects and then re-elects its judges in partisan elections where voters have the option of casting a straight-ticket vote." Notably, one of Texas' most distinguished jurists, Elsa Alcala is voting with her feet, leaving the Court of Criminal Appeals in large part because the election system is broken, as she told the Texas Tribune:
“Either [people] don’t vote in the race, or they vote based on familiar-sounding names,” Alcala said. “It’s not an educated vote in many instances.”

It’s largely why she’s leaving the court. Alcala was appointed to her position in 2011 by former Gov. Rick Perry, then elected to a six-year term the next year. When she announced in 2016 that she wouldn’t run again, she said a main reason was the “random and unreliable” results in partisan judicial elections.
See coverage of both competitive CCA primaries from the Austin Statesman. Meanwhile, out of state money is fueling a judicial candidate in the GOP primary for the Austin 3rd Court of Appeals who's running on a Trumpian, culture-war-style platform. And another Tribune story suggests qualified judges with Hispanic surnames have trouble making it through the GOP primary.

Systemic problems at juvenile justice agency
Texans Care for Children has a detailed blog post up on problems with Texas youth prisons and how to solve them. Notable quote: "When news breaks of staff abuses in these facilities, or even youth misbehaving, it's immediately labeled a crisis or a scandal. But in reality, it's not a new crisis. We are looking at a systemic problem."

More unconstitutional court fees defenestrated

On Twitter, the Texas District and County Attorneys Association mocked a defendant represented by the Harris County Public Defender for winning a court-fee reduction of about $13. And if that's all there were to it, they'd be right to criticize the court for wasting its time.

But in reality (which in general lies FAR away from the TDCAA twitter feed), the Court of Criminal Appeals overturned a lower court's finding, holding that portions of the "consolidated court cost relating to 'law enforcement officers standards and education,' 'comprehensive rehabilitation,' and 'abused children’s counseling' were all facially unconstitutional" and couldn't be applied to anyone. To boot, the 8-1 margin means the ruling is unlikely to change if one or even two judges are replaced during this election cycle.

So sure, if we were just talking about one defendant getting $13 back, it might be a small thing. But reducing all consolidated court costs by about 10 percent and eliminating those specific funding streams? That's a big deal no matter how much snark and disdain arises from prosecutors.

Jani Maselli-Wood, a former Republican CCA candidate who works at the Harris County Public Defender Office, has been knocking down these unconstitutional fees one by one after they were exposed in a legislatively mandated report written by her husband, Ted Wood, when he was at the Office of Court Administration.

TDCAA sees that marital link as evidence of conspiracy, but if eight members of the CCA including three of the four members of the Government-Always-Wins faction, agreed the fees are unconstitutional (Grits is now counting Yeary in that GAW cohort), it seems to me any conspiracy was a good thing. Why would prosecutors or anyone else think it's a good idea to keep unconstitutional laws on the books?

Tuesday, February 27, 2018

On the institutional basis for ineffective assistance: Travis Jail Reduction Docket

Travis County will make unspecified changes to their "jail reduction docket" to counter criticisms that it operated as a plea mill coercing guilty pleas out of jailed misdemeanor defendants in exchange for their freedom. Misdemeanants who couldn't make bail would be herded into the courtroom in bunches, meet their lawyer for the first time sitting on a bench in the courtroom, and typically plea guilty in exchange for time served and their freedom. As Grits noted earlier, this has been going on for at least two decades.

In their defense, "Since 2014, there has been a 50 percent increase in defendants who have received a personal bond at Jail Reduction Docket." So use of personal bonds for misdemeanants has been increasing. Judge Elisabeth Earle said judges want to do more personal bonds but "Sometimes lawyers don’t want to present them." (Read: Sometimes Austin criminal defense lawyers provide ineffective assistance to their clients, and judges pretend there's nothing we can do.)

Otoh, there may be a practical reason lawyers aren't going the extra mile: The Statesman article noted that, "pay for attorneys who resolve cases in the jail reduction court was lowered in 2016 from $275 to $175," which hardly bodes well for quality representation but which likely does reflect (or even overstate) the amount of time presently spent on each case. Perhaps the problem is simply that nobody's getting paid enough to investigate a client's background even minimally to make the case for a personal bond?

Of course, just because there's a structural, institutional "nudge" embedded in the system encouraging ineffective assistance doesn't excuse it. Attorneys are professionals obliged to exhibit at least minimal levels of competence at their craft. However, the Jail Reduction Docket seems to rely and thrive on underpaid attorneys not putting up much of a fuss.

All of which to me constitutes further evidence that Travis County needs a public defender if the commissioners court wants competent representation for the indigent. The private bar has, for too long, controlled that process and their clients' interests - not to mention the taxpayers' interest, and the interests of justice - have suffered as a result.

See prior coverage at the Austin Chronicle for more detail.

Sunday, February 25, 2018

Texas DA and Court of Criminal Appeals primaries: A podcast excerpt

In the February 2018 episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed several District Attorney primary races which haven't received much attention as well as important Court of Criminal Appeals races up this cycle (including a serious challenger to Presiding Judge Sharon Keller). Give it a listen:

See a recent link roundup here related to these DA races (evaluating primaries in Dallas, Bexar, McLennan, Smith, Walker, Victoria, Denton, Smith, and Galveston counties). Find a transcript of this segment below the jump.

Saturday, February 24, 2018

Don't make excuses for bad choices by Harris County judges

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County's magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn't a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren't too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate's disciplinary case flat-out contradicted those made in her court.

Finally, I couldn't disagree more with Grits contributing writer Sandra Guerra Thompson, who was quoted in the story thusly:
"I'm not sure the judges intended to do anything inappropriate in giving those instructions," said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law Center. "I think this is part of the history - misunderstanding that magistrates are not the clerks of the judges. They are themselves hired to be independent judges."
That's giving them way too much credit, and cover. Since Grits first focused on bail questions in Houston back in 2005, the failure to grant personal bonds has been the central problem and it's been patently obvious for years that local elected judges were the culprits behind it. There's no "misunderstanding," it was intentional, and an abuse of power. That's why it took the federal courts to change things.

The idea that there was a structural, "cant get there from here" problem was always a lie. There's really no reason now for the press or advocates to pretend otherwise.

MORE: I should have called out Judge Michael McSpadden's comments from the story, too, and the more I look at them the more I think they deserve an addendum:
State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn't trust the lower-level jurists not to make errors. 
"Almost everybody we see here has been tainted in some way before we see them," he said. "They're not good risks." 
The judge said he was concerned defendants would be released on bond only to be arrested on another offense. Many had casual attitudes about showing up for court, he said. 
"The young black men - and it's primarily young black men rather than young black women - charged with felony offenses, they're not getting good advice from their parents," he said. "Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, 'Resist police,' which is the worst thing in the world you could tell a young black man ... They teach contempt for the police, for the whole justice system."
Let's be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they're being advised by anybody.

It wasn't Black Lives Matter or defendants' families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

AND MORE: ACLU of Texas has called for Judge McSpadden's ouster based on these comments, calling on the State Commission on Judicial Conduct to remove him. Said ACLUTX's Terri Burke, "When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can't be trusted, it's time to take action. This kind of flagrant racism has no place in our justice system." That said, Grits considers it far more likely that voters will remove McSpadden in November than that the SCJC will do so any time soon. He's facing a reasonably strong candidate, and Harris County judicial races appear poised to flip en masse from red to blue. OTOH, the SCJC couldn't possibly remove McSpadden by the end of the year, and based on its history, is unlikely to remove him at all.

Wednesday, February 21, 2018

Endorsing an Over-Incarcerator, History Unfolding, Ain't Nothing but a Plea Mill, and other stories

A few odds and ends to clear Grits' browser tabs

Endorsing an Over-Incarcerator
The Dallas News last week endorsed a Collin County Justice of the Peace for a Texas House seat who, according to an investigation by Buzzfeed, is among the most prolific jailers of juveniles in the state. His opponent is a Greg Abbott appointee to the Texas Juvenile Justice Department board, so debates in this race should be about his penchant for over-incarceration of juveniles, but you wouldn't know it from the DMN editorial. From reading it, I'd bet they hadn't even seen the Buzzfeed coverage. Google is your friend, people!

What's the point of MSM endorsements in GOP primaries?
On a related note, I wonder:  Do mainstream media folk understand that, when they endorse someone in a Republican primary, they're actually harming that person's chances because conservatives distrust the media so thoroughly? That was already true by the time I left the political consulting profession after the '04 cycle (we had polling to prove it), and it's surely become only more so in the current political environment. So if issuing an endorsement HARMS the chances of the person you want to win - in some cases even giving their opponent a winning issue to run on ("stick it to the media, who you hate") - then what is the point, exactly?

Two local rulings with (blurry) statewide implications
When thinking about the 5th Circuit's ruling in the Harris County bail litigation and the settlement in the TDCJ heat litigation, it strikes me there's a notable similarity. The bail litigation affects only one county; the heat litigation affects only one prison unit. And the rulings apply only to those jurisdictions. Yet, identical situations exist everywhere around the state. Harris County's bail policies aren't unique, and there are many thousands of inmates in the "heat sensitive" categories which will receive relief at the Wallace Pack Unit now. But that doesn't automatically mean other counties/units will follow suit and the mechanism for how the principles underlying these rulings might end up applying statewide is blurry and unclear, barring repetitive, individualized litigation to apply the same process everywhere that's similarly situated. I fear litigants on both issues may not have sufficient resources for that, given 254 counties, 100+ adult prison units, etc.. Meanwhile, the Legislature last year proved unable to address bail reform meaningfully, and it's hard to imagine them paying to air condition units unless a judge makes them. So these policies could eventually be imposed statewide, but it hasn't happened yet, it's not inevitable, and right now it's hard for this writer to even see the path on either of them.

Tarrant pretrial jailing policies were for decades a weird outlier
For three decades, municipal police agencies in Tarrant County held arrestees in their own city jails prior to charges being accepted by the Tarrant County DA, at which time they were transferred to a county facility. Back in the 1980s, the county tried to charge municipalities for housing their prisoners and Fort Worth responded by moving their prisoners elsewhere. But the new Sheriff says he's not authorized under law to charge cities a fee. To the extent that's true, it means cities in Tarrant County have been paying tens of millions of dollars for jailing these defendants totally unnecessarily. Plus it costs more to do it piecemeal because it fails to take advantage of an urban county jail's economies of scale. Tarrant is the only county in the state where arrestees weren't taken directly to the county jail, reported the Fort Worth Star-Telegram. The cities should not have been paying to house those prisoners all those years, if I were them I'd be PO'd.

Ain't nothing but a plea mill
This Austin Chronicle depiction of the "jail reduction docket" in Travis County brought back memories, and a measure of appreciation for the attorneys threatening to challenge it in federal court. I recall sitting in Travis County courtrooms as an opposition researcher more than 20 years ago at what was then called the "rocket docket" and watching the same thing: Clients file into the courtroom, meet their lawyer for the first time, converse briefly with their attorney kneeling beside them, then pleading out their case almost immediately. You can see the same thing in Houston any day the courts are open. It's a breathtaking rendition of assembly-line justice that's still going on. Ain't nothing but a plea mill, baby.

History, unfolding
The Houston Museum of African American Culture has installed a Sandra Bland exhibit. Fitting. Will have to stop in and see it next time I'm in H-Town.

Grits found himself the other day in the offices of the Combined Law Enforcement Associations of Texas, and thought this was a pretty cool piece of logo-bling:

Father's pleas heard as parole board recommends clemency

The Texas Board of Pardon and Paroles yesterday unanimously recommended clemency for Thomas Bartlett Whitaker, the first time in a decade the BPP has recommended against a death sentence. Whitaker orchestrated the murder of his family and his father, the only surviving victim, has been campaigning to save him from the death chamber. I mention it to remind readers that my podcast co-host, Mandy Marzullo, interviewed Whitaker's father last month about his son's case. Check out their full conversation here.

Tuesday, February 20, 2018

Podcast: Texas DA primaries, Court of Criminal Appeals races, and much more

Check out the February 2018 episode of Just Liberty's Reasonably Suspicious podcast, featuring discussions of Texas District Attorney and Court of Criminal Appeals primary races, Just Liberty's campaign to install justice reform in party political platforms, how Texas' law about driving on the shoulder is similar to the NFL's debate over what is a catch, and much more. You can listen to the podcast here:

In this episode you'll find:

Top Stories
  • Competitive Texas District Attorney primaries
  • Texas Court of Criminal Appeals primary races
  • Just Liberty's campaign to put #cjreform into party platforms
Home Court Advantage
  • Court of Criminal Appeals considers pretext stops #DezCaughtIt
  • Victim of prosecutor misconduct denied relief at 5th Circuit
Errors and Updates
  • Harris County loses bail litigation
  • TDCJ settles heat litigation
  • Management shakeup at Texas Department of Juvenile Justice
The Last Hurrah
  • Juvenile probationers in Harris County overincarcerated
  • TDCJ wage hikes create problems for youth prison employee turnover
  • Fort Worth and Austin opted out of Great Texas Warrant Roundup
Subscribe via  iTunesGoogle PlayYouTube, or SoundCloud. And find a full transcript of the podcast after the jump.

Friday, February 16, 2018

Competitive DA races to watch

Among DA races, the main three I'm watching in the primary are Dallas and San Antonio on the Dem side, and McLennan County (Waco) on the R side. See coverage from
Of these, the McLennan County race is perhaps most interesting. The Twin Peaks biker cases are completely unraveling, with the DA office walking away from the cases and the state Attorney General refusing to prosecute them. Will GOP primary voters punish Abel Reyna for screwing the case up so badly? Time will tell. But the timing really couldn't be worse for him.

MORE: An alert reader complained that I'd left out the DA contest in the Smith County GOP primary. My bad; Grits hasn't been watching the hometown news. Here's a link to coverage of a candidate forum in January and video of a recent candidate debate.

AND MORE: Preparing for a podcast segment on the primary elections, Grits ran across a few additional races of which readers should be aware.

In Victoria County, the daughter of a former DA is running against the incumbent on a reform agenda, chastising him for a failed policy of taking every first-offense DWI case to trial. This race shows how "reform" is relative. Not every reformer DA will be Larry Krasner. In Texas, simply being willing to oppose extremist bone-headedness in favor of pragmatism and math can make one a "moderate" in the GOP primary.

In Denton County, challenger Brent Bowen says the reputation of incumbent Paul Johnson’s office has been “marred by law suits and misconduct.”

Then there are a couple of competitive DA races out there which won't be decided along "reform" axes but rather by more traditional charges of incumbents being too lenient in plea bargaining. In Galveston, Jack Roady faces a primary challenger accusing the incumbent of being soft on crime. And in Walker County, the county seat of which is Huntsville, the First Assistant of incumbent David Weeks is battling it out with a civil attorney whose supporters say the DA office isn’t tough enough on DWI.

Monday, February 12, 2018

Cowtown bucks Great Texas Warrant Roundup

Fort Worth may be the first Texas city to pull out of the so-called "Great Texas Warrant Roundup," according to a report in the Fort Worth Star-Telegram:
now the City of Fort Worth Municipal Court has decided it wants to save you from an embarrassing arrest by bucking the aggressive roundup approach for a more neighborly discourse that it also believes will prove to be more productive. 
"We're calling it Warrant Forgiveness Month,” Municipal Court Director Theresa Ewing said. 
No, it's not wiping the slate for those with Class C warrants, however this new "Court in the Community" initiative — a mobile courthouse coming to a part of town near you — does guarantee an arrest-free encounter while meeting with a municipal judge to arrange a payment plan (or even swapping fines for community service) to make that burdensome warrant a thing of the past. 
The program began to take shape after last year’s Convoy of Hope event at Southwest High School. The Municipal Court was invited to set up a mobile unit, and the people came. Ewing said 87 people were able to rid themselves of warrants by working out a payment plan.
That's what it looks like when government seeks to enforce these petty laws for the public good instead of mere rent seeking motivations. Nobody's getting off the hook, but neither is the focus on a "roundup," as though poor people with unpaid traffic tickets were so many bovine to be punched by armed-and-badged cowboys participating in a human cattle drive.

If this were happening Austin or even Dallas, one might write it off to Democratic officials setting more liberal policies. But that's not what's going on here. "Cowtown" is Trump country, and them dropping the "warrant roundup" may inspire other Texas jurisdictions to follow their lead.

Grits wishes every Texas legislator and staffer, much less every JP, muni court judge and city council person, would read these stories from the Fort Worth Star-Telegram about why Fort Worth, a GOP bastion, stopped issuing arrest warrants for most unpaid Class C misdemeanor violations:
That second story in particular is a must-read. Add in the Driver Responsibility surcharge on top of the warrants described, and unpaid traffic tickets can become an insurmountable mess.

There has been some legislative push to get at these issues, like SB 1913 from 2017 which eliminated some of the more egregious practices for squeezing blood from stones. But firmer measures like House Corrections Committee Chairman James White's bill to eliminate arrests for traffic ticket debt outright didn't make it through.

Fort Worth's example shows those stronger approaches are workable and should be revisited. We haven't jailed poor people for private debt in America for more than 180 years, and in the 21st century, there's no good excuse for jailing them for traffic-ticket debt, either.

Sunday, February 11, 2018

Honoring those who put their lives on the line every day

We've all heard the statement dozens of times or more: "Police officers put their lives on the line every day." And it's true, in the same sense that construction workers or taxi drivers or bartenders put their lives on the line every day, all of whom perish on the job at roughly similar rates as police officers.

But when it comes to local government employees at seriously high risk, the New York Times has a feature this weekend which highlights a larger source of municipal employee deaths: Sanitation workers, who tend to die on the job at more than double the rate of police officers.

Grits mentions the story to offer a mea culpa: Several years ago I'd made the observation that, "The people picking up your trash put their lives on the line every day and are more likely not to make it home at night than their brethren in blue. But one suspects we won't any time soon see a New York Times headline memorializing their sacrifice."

It took nearly six years, but eventually the Times did publish that article.