Saturday, October 31, 2015

Would making Daylight Savings Time permanent reduce crime?

Would making Daylight Savings Time permanent reduce crime? Reported the Houston Chronicle's Mike Glenn (Oct. 30):
Daylight saving time will come to an end at 2 a.m. Sunday, but a pair of researchers say crime across the nation could drop and millions of dollars could be saved if everyone forgot to fall back and just made it permanent.

Shifting daylight from the morning to the early evening has "pretty hefty returns for public safety," authors Jennifer Doleac and Nicholas Sanders wrote in Brookings about their upcoming paper in The Review of Economics and Statistics.

"When (daylight saving time) begins in the spring, robbery rates for the entire day fall an average of seven percent, with a much larger 27 percent drop during the evening hour that gained some extra sunlight," they wrote.
See more detail from Brookings. There's a certain logic to the argument, to be sure:
The study found that most crime occurred in the evening, generally between 5 to 8 p.m. Adding an extra hour of daylight would help to reduce crime, they said.

"We feel safer when we're walking in the daylight," they wrote. "Offenders know they're more likely to be recognized and get caught if they're fully visible."
But a natural experiment created by Congress allowed them to test the hypothesis with data: "In 2007, Congress extended daylight saving time by four weeks - three in the spring and one in the fall - to reduce energy consumption. The researchers said the extension saved $59 million in avoided social costs by reducing the number of evening robberies."

If the data truly demonstrate it reduces crime, making Daylight Savings Time permanent makes lots of sense. I'm tempted to use the phrase "common sense," but in general Grits finds most common-sense positions suffer from a striking lack of self-awareness about their shortcomings - sort of the public-policy equivalent of anosognosia. In this case, though, there's a data-driven analysis to support a common-sense view.

The anachronistic, seasonal daylight-savings time system held over into the 21st century as a relic from America's rural past. For a nation of townies, setting a single, uniform time standard based on maximizing public safety seems like a wise, overdue move. At a minimum, it would stop everyone misusing CST/CDT when they designate meeting times. I'm convinced most folks just guess.

Prosecutor: We'll test DNA if we can still execute you, anyway

Grits found it remarkable that the Texas Court of Criminal Appeals continued to deny death-row Larry Swearingen DNA testing even after the Legislature changed the law this year ostensibly to allow it. See Judge Keasler's ruling denying testing, Judge Yeary's partial concurrence and partial dissent, and Judge Alcala's dissent. (The rulings interpret the version of the statute before this spring's changes.)

The Houston Chronicle's Cindy Horswell had by far the best coverage of the ruling (Oct. 28). This observation, to me, summed up the absurdity of the situation: Montgomery County DA Brett Ligon "said his office has offered to do the additional DNA testing since 2013 - if Swearingen's attorneys' would agree the findings would not alter the outcome of the case." So, he's willing to have DNA testing performed so long as Swearingen can still be executed if he turns out to be innocent ... the mind reels!

In that light, the Court of Criminal Appeals denying testing makes little sense to this non-lawyer observer. Killing Swearingen without testing guarantees questions will hang over the case because of such an aggressive, disingenuous stance by the DA, which is reminiscent to this writer's mind of John Bradley's years-long battle to deny DNA testing to Michael Morton. Bradley made similar claims about the overwhelming evidence of Morton's guilt right up until DNA evidence cleared him. So if evidence of Swearingen's guilt really is "overwhelming," testing the evidence should be no big deal. But when you're talking about capital punishment, it's better to know than assume.

Swearingen is represented by Bryce Benjet of the national Innocence Project, where "attorneys are mulling over whether to file yet another motion to seek DNA testing under this revised statute," Horswell reported.

Friday, October 30, 2015

Free film screening of "The Guy With the Knife" next Thursday evening

Those of you living in Texas in 1991 may remember the high profile case of Houston banker Paul Broussard, a gay man, who was killed in the Montrose neighborhood in an apparent hate crime.  The case galvanized the gay community, and local activist Ray Hill helped generate substantial media attention to the crime in an effort to identify and prosecute the killers.  Eventually, a group of teenagers from The Woodlands were charged in the crime.  One member of the group, a 17-year old named Jon Buice, was identified as "the guy with the knife" who actually stabbed Broussard.  While most of the teens received probation or relatively light sentences, Buice pleaded guilty and received a 45-year sentence in a plea bargain agreement.

Shortly after Buice was convicted, Ray Hill--the activist who helped put Buice in prison--befriended him and, over time, came to believe that this was not a hate crime at all.  Buice grew into a model inmate, obtained college degrees, and gained the support of many in the gay community as he went up for parole.  But the victim's family, spurred on by the efforts of Houston victims' advocate Andy Kahan, fought his release.  A positive parole vote was rescinded a few years ago following some intriguing twists and turns.

Canadian filmmaker Alison Armstrong has now made a compelling documentary about the case called "The Guy With the Knife."  The film, which has won awards at several film festivals, raises fascinating questions about the influence of the media in criminal cases, about how much punishment is enough, and about the nature of forgiveness.  And it presents unsettling information about injustices in the case that have not previously been brought to light.

The film is screening for free at the LBJ School of Public Affairs on Thursday, November 5, at 7 pm (doors open at 6:30 pm).  Admission is free, but you must register at this site, which has more details about the event.  Following the film, there will be a panel discussion moderated by LBJ senior lecturer Michele Deitch with filmmaker Alison Armstrong, journalism prof Michael Berryhill, and Houston LGBT activist Maria Gonzalez.  Some of the subjects from the film will also be in attendance.

RELATED: See Michael Berryhill's essay on this case from 2013.

Grits' note: This is the inaugural post from Michele Deitch, an attorney and senior lecturer at the UT-Austin LBJ School and another of the terrific new folks I've asked to join me writing on Grits. Michele's impressive depth of experience on criminal justice issues dates to her stint as a full-time monitor for the federal court in the Ruiz case, which means she's been at this even longer than me! At the Texas Legislature, Michele is a trusted voice both on juvie and prison condition issues. I'm grateful she's agreed to do this.

Thursday, October 29, 2015

Forensic fails, and other stories

As your correspondent prepares for today's Exoneration Commission hearing, here are a number of items which likely won't make it into individual blog posts but which merit Grits readers' attention:

No clear way to track down junky bite-mark cases
The Dallas News has a high-powered team - Brandi Grissom and Jennifer Emily - covering the Steven Chaney bite mark case and the Forensic Science Commission review of bite mark cases. They reported Monday that "Tracking down dozens — maybe hundreds — of other potentially innocent victims of junk science won’t be ... easy. There is no central repository of cases in which bite-mark testimony was key. There’s no database of dentists who testified about bite marks. And the cases are mostly decades old, and experts, defense lawyers and prosecutors have moved on or died."

Bad Ballistics?
The Texas Court of Criminal Appeals ordered an examination into overstated ballistics testimony from an expert in Arthur Brown, Jr.'s 22-year old capital murder trial, in which he was prosecuted along with an already-executed accomplice for a quadruple killing in a botched drug transaction. Reported the Houston Chronicle:
Brown was scheduled for execution in October 2013 but received a stay to allow for forensic testing of evidence. An accomplice, Marion Dudley, 33, was executed in 2006.

On Wednesday, the appeals court judges acted on Brown's November 2014 appeal in which he asserted that Houston Police Department ballistics expert C.E. Anderson "testified falsely or in a materially misleading manner" in his case. Judges held that the claim met state standards warranting review.
See the court's order.

Paging Antonin Scalia: On the right to confront the boss of your accuser
The Court of Criminal Appeals also ruled that the requirements of the Sixth Amendment's "Confrontation Clause" may be met for "batch DNA testing" by a crime lab supervisor testifying based on computer printouts instead of the lab workers who conducted the analysis. Judge David Newell is of course correct that neither the CCA nor SCOTUS have ever "squarely answered this question." SCOTUS said that sworn affidavits are insufficient, but not whether a supervisor can testify based on the work of her subordinates. But one certainly wonders what Antonin Scalia might say about it. It's hard for this non-attorney to understand why relying on data generated by non-testifying lab analysts is different from relying on an affidavit to which they did not testify.

Are black-box calculations problematic for DNA mixtures?
Next year, the Department of Public Safety and most other Texas labs will shift to "probabilistic genotyping" to analyze DNA mixture evidence, a method which supposedly is superior even to the adjusted calculations which are currently available. However, that method relies on proprietary programs with black-box systems for which the makers will not release their code, similar to the situation surrounding proprietary breathalyzer algorithms which accuse defendants based on computer code which their attorneys and the court cannot see nor evaluate. See good discussions of the topic from Slate and Ars Technica. Moreover, as Grits reported earlier, because of the nature of the calculations, results based on probabilistic genotyping will be different every time - they're not replicable, in addition to not being transparent. So, while the fact that the DWI equipment is still in use makes me think Texas courts would ultimately find a way to allow this sort of proprietary opacity, Grits continues to wonder if probabilistic genotyping is the best tool for the job when it comes to providing courtroom testimony, given that there are other methods available where the calculations are both transparent and replicable.

Finding housing with a felony record
There's a good article in the Houston Chronicle on the struggles poor people have renting an apartment with a felony record. Houston is closing a dangerous low-income apartment run by a slumlord who they've sued over "atrocious living conditions." Reporter Emma Henchliffe decided to pay attention to what happened to the ousted tenants, finding that the ones with a felony record had a terrible time locating new places that would take them. "Individual owners have the right to accept and reject applications as they choose, but the lack of alternatives for tenants who do not meet owners' standards causes many former offenders to end up at places like Crestmont," she wrote. "Some apartments where [one tenant] applied took her application fee and never got back to her." When you consider the volume of felons Texas produces - we release more than 70,000 prisoners from TDCJ every year - this is a much more important issue than one would think from the amount of coverage it receives. I was glad to see this article.

No surprise: 'Stingrays' really do intercept content
Turns out, contrary to public assertions by law enforcement, Stingrays are indeed able to intercept calls as well as cell-phone metadata, it's now been proven. This was obvious to anyone who thought about it: The devices trick your phone into routing through a fake cell phone tower; clearly they were intercepting the whole call, not just metadata. And experts have been telling us this for a while. Still, nice to see it confirmed, it's one less thing to argue about.

NOTE: A brief item about a murder case in Denton was removed from this roundup after a commenter informed me that the underlying news article improperly attributed a court action to DNA mixture protocols when the real issue was unrelated. Grits apologizes for the error and will perhaps revisit the topic when more accurate information is available.

Wednesday, October 28, 2015

How to reduce police ambush deaths

Based on a new DOJ analysis, the Washington Post reported (10/27) that the number of ambush assaults against police is on the rise, even as police officers' on-duty deaths remain fairly steady and overall assaults against officers are down. When one looks at the details of the study itself, however, it emphasizes much more than the Attorney General did how extremely rare ambush deaths are in practice. Even more interesting to this writer, though, was what the DOJ report had to say about strategies that might reduce police ambushes:
Fewer police ambushes. We found three organizational factors that were associated with reduced numbers of ambushes against the police. The effect of requiring new officers to have at least some college education was a 54 percent decrease in ambush assaults. In addition, agencies  that evaluated new hires on conflict management experienced, on average, 43 percent fewer ambushes than those that did not. Last, in-car cameras, measured by the ratio of cameras to patrol vehicles, were associated with fewer ambushes. Police agencies that had a camera in every patrol car experienced, on average, 61 percent fewer ambushes than those that did not.
Besides those three things - better educated cops, screening recruits for de-escalation skills, and cameras in patrol cars - there was no other statistically significant, causal factor identified by DOJ which reduced ambush attacks. (See pp. 35-36 of the pdf.)

Think for a moment: Why would more educated cops or screening for de-escalation skills reduce ambushes, much less cameras in patrol cars? To the extent these factors correlate strongly to fewer ambushes, does it follow that less-well educated cops without de-escalation skills create greater risks of ambush deaths?

This is hard to understand because the data appear to blame the victims. To the extent we're talking about episodes like Deputy Darren Goforth's murder in Houston, it's difficult to see how greater education or de-escalation techniques might have prevented his death.

Still, the correlations are so strong for those three elements, there must be some explanation. Regardless of the reason, this finding should be of interest to the Texas Senate Criminal Justice Committee, which received an interim charge related to investigating ways to reduce police officers' on-the-job deaths. Those three suggestions are a good place to start.

Tuesday, October 27, 2015

City of Austin sued for illegally jailing poor debtors

Modern-day debtors’ prisons, where municipal and JP courts routinely jail people too poor to pay fines and fees from traffic tickets and other petty offenses, have been a hot topic since the discriminatory policing practices of Fergeson, Missouri and other St. Louis suburbs were exposed last year. 

Yesterday the Texas Fair Defense Project, the UT Civil Rights Clinic, and the law firm Susman Godfrey filed a federal lawsuit to stop the City of Austin from unconstitutionally jailing people for municipal court debt. This is the first class action lawsuit of its kind to be filed in Texas, and along with a recent investigative piece by BuzzFeed on similar issues in the El Paso Municipal Courts, has brought the conversation about how justice is meted out for the most petty of criminal offenses to Texas.

Regardless of what happens in the court case, the practice of jailing people unable to pay their fines and fees is just plain bad criminal justice policy.  It's a lose, lose, lose. The debtor loses their job, their home and possibly their children or other family connections. Their children and other dependents lose the economic and emotional support that the debtor had provided and increase their dependence on public benefits and social services. The city, county and state government have increased costs and decreased tax revenue, due to the debtor losing their job and the increased burden on public benefits and social services. 

And county taxpayers foot the bill for the jail housing the debtor. By our calculation, that bill could be $60,000 a month for Travis County based on debtors ordered jailed by the City of Austin alone.

I hope this litigation creates an opportunity to rethink how things have been done in the past and change business as usual in municipal and JP courts for the future.

MORE: See coverage of the new lawsuit from BuzzFeed News and the Austin Statesman, as well as BuzzFeed's related coverage from El Paso.

* Disclosure - This post was authored by Rebecca Bernhardt, Executive Director of the Texas Fair Defense Project and attorney for the Plaintiffs in Gonzales et al. v. City of Austin.

Grits' note: Readers, Becky is one of several wonderful new writers Grits will be welcoming on board in the near future to bolster my own waning content and provide some new perspectives. Becky's a fine lawyer and a veteran civil rights advocate who I've known for a decade or more. She's a valued friend who this spring succeeded our pal Andrea Marsh as executive director at the Texas Fair Defense Project. So please welcome Becky and treat her kindly. I'm grateful she agreed to write here and thrilled she decided to kick things off with such an important announcement.

Grits in New Orleans: On 'Criminal Justice and the Press'

Thanks a bunch to our pal Vikrant Reddy and his staff at the Charles Koch Institute for extending an invitation to your correspondent to be on a dinner panel on "Criminal Justice and the Press" next week at their conference in New Orleans. The other panelists are Reihan Salam, who's executive editor at National Review, and Conor Friedersdorf, a staff writer at The Atlantic. So they've placed me in esteemed company for a lowly blogger. Gracias, amigos. 

Normally Grits eschews the conference circuit, but this is the first such national event put on by a major conservative funder and the presenters, who include a healthy Texas contingent, represent remarkable ideological diversity compared to most such gatherings, which makes it more interesting for me. Looks like a neat event and, naturally, Grits will write up the most entertaining bits upon my return for the benefit of those who can't make the trip.

Monday, October 26, 2015

Innocence work here, there and yon

Big day for my employers at the Innocence Project of Texas today:

Prosecutor faces interrogation over Brady
In Dallas, IPOT board chairman Gary Udashen questioned a former prosecutor accused of withholding Brady material in the 1999 murder convictions of Dennis Allen and Stanley Mozee (Mr. Allen is an IPOT client; Mr. Mozee is represented by the national Innocence Project). After prosecutors and the trial judge recommended relief, the Texas Court of Criminal Appeals ordered the trial court to put the prosecutor on the stand and ask him why he failed to turn over evidence of deals with jailhouse informants. That's what happened today.

DNA mixture notification snafu
This afternoon, IPOT's legal director Mike Ware attended a Forensic Science Commission work group discussing notification and indigent defense challenges related to defendants convicted based on erroneous DNA mixture protocols. (See prior Grits coverage.)

Exoneration Commission: What issues might it investigate?
See recommendations drafted by your correspondent on behalf of the IPOT for the Timothy Cole Exoneration Review Panel suggesting issue areas for possible study based on an examination of recent innocence cases. The commission's first meeting is Thursday afternoon in Austin.

Tack on the fact that we sent out a fundraising email this morning and it's been quite a busy day.

Sunday, October 25, 2015

George Will on why Republicans should support criminal-justice reform

Grits hopes Texas' Governor, Lt. Governor, and other state leaders all read George Will's column in yesterday's Washington Post titled "The GOP's justice reform opportunity," which opened:
The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African-American vote. To this end, they need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.
Here's the article he's referencing from the Georgetown Law Review by Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. Grits recommends it highly, but at a minimum GOP leaders should read Will's remarkable summary, which identifies a series of mostly innocence-related public policy reforms he wants Republicans to embrace.

Kozinski advocated greater skepticism of eyewitness accounts and traditional forensics like fingerprints, spectrographic voice identification, arson investigation, and handwriting analysis. He called for recording interrogations and limits on jailhouse snitch testimony. And he suggested defendants falsely confess, as Will put it, "for reasons ranging from a desire to end harsh interrogations, to emotional and financial exhaustion, and to coercive charging of multiple offenses made possible by the overcriminalization of life."

He criticized prosecutorial misconduct, calling for scaling back absolute immunity and creating prosecutorial integrity units. And he suggested "allowing jurors to take notes and ask questions during the trial, and repealing three [federal] felony statutes a day for three years."

Will closed by suggesting a process similar to the one Texas will soon undertake with the Timothy Cole Exoneration Review Commission, whose first meeting is on Thursday of next week (Oct. 29).
Finally, [Kozinski] advocates careful study of exonerations, of which there have been 1,576 since 1989. And for every one, “there may be dozens who are innocent but cannot prove it.” If the error rate is 1 percent, 22,000 innocent people are in prison. If the rate is 5 percent, the number is 110,000. Whatever the number, it almost certainly is disproportionately African-American.
In Texas, according to the National Exoneration Registry, there have been 113 exonerations during the period from 2010-2015 that the Exoneration Commission will study. For a red state to commit to analyzing the causes of false convictions provides solid evidence that Will's suggestion isn't that far-fetched.

If a non-trivial number of Republicans adopted Will's messaging advice in the coming election, it would transform American criminal justice politics. If they were serious about it, and if rhetoric were followed up by deeds, I could see that strategy peeling off African American voters at the margins over the next few cycles. The majority of black folks will remain reliably Democratic for the foreseeable future. But 12 percent is not an over-ambitious goal for the Party of Lincoln. And Will has arguably identified the most likely path for the GOP to achieve it.

Halloween now national PR day for sex-offender registries

It seems like Halloween has become a national PR day for state sex offender registries.

This morning Grits typed the phrase "Halloween sex offender" into Google News and half a dozen stories came up with a link that said 503 more were available if one wanted to "Explore in depth." So the meme appears to have hit critical mass.

As I've written before, "The annual demagoguing over sex offenders at Halloween is a classic example of what security expert Bruce Schneier calls 'security theater,' hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives. The approach is dumb, it's wrong, and it makes the public less safe."

As a partial antidote to this foolishness, check out Michael Hall's excellent story in Texas Monthly about a man on the Texas sex offender registry who is pretty clearly innocent but subject to registry conditions, anyway. The guy's life has been a living hell. Read the whole thing, Mike did a great job with it. MORE (10/28): See a Marshall Project article on Halloween sex-offender restrictions.

Since Grits has addressed this sort of Halloween hype many times in the past, rather than repeat myself I'll refer readers to these prior, related posts:

Thursday, October 22, 2015

Compiling new data on Texas police shootings

This year, Texas became among the only states to systematically track peace officer-involved shootings, with agencies filling out a one-page report about each one and sending them to the state Attorney General for publication on the web. (See prior Grits coverage.)

Now, that information has been made available via a new online spreadsheet compiled by Amanda Woog, a super-smart young attorney who clerked for Judge Cheryl Johnson at the Court of Criminal Appeals before working as a policy analyst for the Texas House Criminal Jurisprudence Committee, where Grits first met her this spring. This fall, she took a post as a postdoctoral fellow at the UT-Austin Institute for Urban Policy Research and Analysis; this database represents her first project in that new role.

Ms. Woog graciously agreed to sit down for a podcast to discuss in detail what information is included in these new reports and the other source she's drawn upon for the database, as well as how this information might influence public discussions surrounding police shootings. (See a brief analysis she prepared regarding the new law and its implementation.)

Some of the incidents Woog catalogs have never been publicly reported in the media. And even though the new statute doesn't require departments to report either the name of the officer of the person he or she shot, in many cases she has been able to find that information from other sources. So she's adding a lot of value here for journalists and other researchers. You can listen to our conversation here:

Or else find a transcript of our discussion appended below the jump.

Roundup: Debating de-incarceration, deterrence, DNA, dogma, and death

Here are a few items which merit Grits readers' attention even if I don't have time at the moment to blog on each of them:

Police chiefs for de-incarceration?
Including in Houston and San Antonio ... this is an interesting development.

More coverage of DNA mixture debacle
Nothing new here for Grits readers, but the Austin Statesman has picked up the story. One notices they linked to all the prior MSM coverage on the issue but not the Grits posts which broke the story and provided more detail than mainstream news sources.

Few police officers feloniously killed, assaults on cops down
Reported the Houston Chronicle, "Officer deaths have fluctuated significantly but generally have trended downward during the past century." Further, " assaults against officers have dropped significantly, from 57,000 incidents in 2005 to the roughly 48,000 in 2014, even as the population has grown substantially." According to a national foundation which tracks police officer deaths, "Based on all the factors, it's safer to be a law enforcement officer now than it was 30 years ago."

Depositions scheduled in crime lab retaliation case
Top Harris County officials are scheduled to be deposed next week in a lawsuit by two former crime lab supervisors "who allege Harris County prosecutors retaliated against them for exposing serious flaws in how local police tested suspected drunk drivers." This summer, a federal judge ruled the lawsuit could move forward.

Audit: Craig Watkins misspent asset forfeiture funds
To the surprise of no one, the state auditor just released a report declaring that former Dallas County DA Craig Watkins misspent asset forfeiture funds to pay off a civil settlement from a car accident, private attorneys fees, and other dubious expenses.

Death sentence decline
According to the Texas Tribune, "Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976." Only two new ones so far this year.

Debating deterrence
Parsing the soft evidence behind harsh rhetoric.

Prison Architect, the video game
Just when you thought you'd seen it all.

Why criminal justice reform is a conservative cause
From the National Review.

'Colored' lives matter?
The Waxahachie Light published an article by a local high school student critiquing the Black Lives Matter movement for overstating police brutality against "colored" people! Seriously, "colored" people. I don't blame her so much as the newspaper editors who should have known better than publish such a phrase or to put the youngster in such a position. What were they thinking? As a partial antidote to such puerile foolishness, check out Cosmopolitan's feature interview with the three women who launched the Black Lives Matter movement.

Will Houston PD, DPS begin getting warrants for Stingray use now that feds require one?

Now that the US Justice Department and the Department of Homeland Security have begun requiring agents to obtain search warrants to use "Stingray" surveillance devices (fake-cell phone towers operated by police which trick your phone into routing calls through it), will Houston PD, Fort Worth PD, Texas DPS, and other Texas agencies we don't know about who own those devices start getting warrants, too?

Houston PD doesn't even tell local prosecutors when they use the device, much less seek warrants from a judge. But that approach now diverges significantly from federal practice. Can it be sustained?

The Texas Legislature this year failed to pass legislation by Rep. Duane Bohac and Sen. Craig Estes which would have installed a warrant requirement in state law. But there's an argument the Fourth Amendment to the US Constitution requires a warrant, anyway. So, with the feds backpedaling on the question in the face of numerous court challenges, Texas agencies should probably start seeking warrants, too, or else risk a federal benchslapping down the line.

Wednesday, October 21, 2015

Good for John Cornyn

This blog tracks neither federal legislation nor D.C. politics, but it sure doesn't hurt those of us fishing downstream to have Texas' senior US senator championing federal sentencing reform, out there declaring on the stump that being tough on crime isn't enough.

Maybe Sen. Cornyn's example will embolden state legislators in Austin come 2017 to follow his lead and directly attack excessive sentencing instead of piddling around the edges of the problem.

Tuesday, October 20, 2015

Prosecutor to testify over withheld informant deals

Pursuant to a Texas Court of Criminal Appeals order, on Monday in Dallas a former prosecutor will be called to testify regarding deals with jailhouse informants discovered during the habeas process which had never been disclosed to counsel at trial. See a brief announcement posted today by my employers at the Innocence Project of Texas (IPOT).
Dallas County District Judge Mark Stoltz
Dallas County District Judge Mark Stoltz

Dallas District Judge Mark Stoltz ordered the two defendants, Dennis Allen and Stanley Mozee, released on bail last year after agreeing with the District Attorney that exculpatory evidence had been withheld and they deserved relief. But the CCA remanded the case, ordering the trial court to take testimony from the prosecutor in question, which is what will happen Monday.

For more background, see past coverage from the Dallas Morning News and the national Innocence Project, which represents Mr. Mozee. IPOT represents Mr. Allen.

MORE: With Monday's hearing happening so soon before the first meeting of the Timothy Cole Exoneration Review Commission on Oct. 29, it occurred to me it may be helpful to provide links to policy resources on confidential informants related to issues which arise in these two cases and others since 2010 - most notably Richard and Megan Winfrey involving jailhouse informant testimony:

DNA from private databanks searched in investigations

Might people who submitted their DNA for private genetic testing wind up having their profiles run against evidence from crime scenes? According to the Legal Aid Society's latest DNA Newsletter:
Over a million people have sent their DNA samples to private genetic companies like and seeking answers to their most personal questions about family lineage and ethnic descent. Smithsonian Magazine writes that many people use private genetics companies as an alternative to expensive medical diagnostic tests, and just last week the Atlantic wrote about a new DNA crowdsourcing site called DNA.LAND. But as more people send DNA samples into these seemingly innocuous databanks, law enforcement has capitalized on the public’s naiveté by using private databases as an investigative tool.

Unlike the FBI’s national DNA databases which dictate when and what samples can be uploaded, private databases populated with volunteered samples are unregulated by the government and unfettered by constitutionally protected privacy provisions. While these for-profit companies claim to keep clients' personal information private, until last year had a public online database that anyone could search. Their privacy policies concede they will provide information to law enforcement upon court order. Even without client names and addresses, police can search genetic databases for DNA matches and then obtain warrants for the donor’s identity.
Says Fusion, “…People  who submitted genetic samples for reasons of health, curiosity, or to advance science could now end up in a genetic line-up of criminal suspects.”

Cautionary Tale:

In 2014, Michael Usry came under suspicion for a 1996 Idaho cold murder after police ran a familial DNA search in the database and found a partial match to Usry’s father. The elder Usry had donated a DNA sample to a genealogy project in Mississippi, which was later acquired by When police searched the private genealogy database in 2014, Usry’s father was excluded as a match, while his son, living in New Orleans at the time, became the prime suspect in a murder he did not commit. Michael Usry was ultimately clearedstill, his story highlights the dangers of unregulated, privately run DNA databases.

Sunday, October 18, 2015

60 second man: Local boy makes good with series of conservative shorts

Our pal Vikrant Reddy, formerly of the Texas Public Policy Foundation and now of the Charles Koch Institute, stars in a series of short videos the conservative group produced explaining various aspects of the criminal justice system from a right-of-center perspective.
Reddy was a really good hire for the Koch Institute, IMHO. These videos stake out quite a different set of positions, Grits suspects, than the Koch brothers' myriad ideological critics may anticipate.

Great job, Vik!

H/T: Sentencing Law and Policy.

Wednesday, October 14, 2015

On bite marks and false confessions

Two emerging innocence issues in the news in Texas this week:

Bite marks
Steven Chaney, the man whose bite mark case recently spawned a review by the Forensic Science Commission, saw a Dallas judge recommend habeas corpus relief this week and was released on bond pending a decision by the Texas Court of Criminal Appeals. His attorneys have also alleged prosecutorial misconduct. He was convicted in 1989. See also a Dallas News editorial, "Freedom for a prisoner of bad science." A fun tidbit: "The conclusion of Chaney’s challenge was so foregone that the judge went out beforehand and purchased a pie to give him upon his release Monday."

False confessions
On Friday, Dateline NBC will feature the story of Daniel Villegas, the El Pasoan convicted at 16 who spent 18 years in prison based on a false confession. See Nate Blakeslee's coverage from Texas Monthly last year, and also prior Grits coverage. See also an NPR story out this week titled, "Why are kids more likely to give false confessions?"

City councilman tased for contempt of cop

When Tasers were first introduced, proponents pitched them as an alternative to deadly force. In practice, though, use of deadly force by police remained prevalent and instead law enforcement tends to use Tasers to gain compliance, as evidenced last week by the tasing of a Prairie View city councilman. The councilman approached police who were questioning three of his friends outside his home. He was "not combative" and backed away from the immediate scene when told, but did not go as far away as the officer wanted. Before he was tased, he repeatedly declared "I live here," asking "What's the issue? What did I do?" He was arrested for interfering with public duties and resisting arrest.

Viewing the video, this had nothing to do with officer safety, the councilman was tased and arrested for "contempt of cop."

Reported the New York Times, "Taser International, the manufacturer of the electrical weapons, said in May that more than 18,000 law enforcement agencies had purchased the devices, which are used about 900 times a day."

Monday, October 12, 2015

Asthma death at TDCJ, Houston indigent defense fail, fixing parole, and other stories

Here are a handful of items which merit Grits readers attention even if I don't have time to blog on each individually:
  • Grits had missed this excellent story from WFAA on Curtis Garland's death in TDCJ because he couldn't get access to his asthma inhaler. Tragic. What a waste.
  • Grits has never met the Texas Observer's Emily DePrang but I'm such an admirer of her reporting, I fear if I ever do I'll come off as some sort of fanboy. Check out Emily's latest on the failures of the Harris County indigent defense system. Nailed it, again. Great job. (Note: I feel the same way about Melissa del Bosque; those two gals have been kicking ass for the Observer these last few years.)
  • Witness coercion and prosecutors withholding exculpatory evidence in a death penalty case - who is surprised? MORE: The CCA stayed the execution to review prosecutorial misconduct allegations.
  • In Dallas, Sheriff Lupe Valdez will no longer honor immigration holds for low-level offenses, reported the Dallas News. "Some 300 counties and cities have officially restricted the extent that they work with ICE." Critics are labeling Dallas a "sanctuary city" based on the new policy, but Grits suspects that won't hinder Valdez's quest for a fourth term as Sheriff.
  • Check out a 10-point program for reforming parole. Some good suggestions here.

Focus on suicide, traffic accidents to reduce police officer deaths

The Texas Tribune reported that Lt. Gov. Dan Patrick has "asked the Criminal Justice Committee to make recommendations to 'reduce the number of injuries and deaths to or by law enforcement officers,' by reviewing police efforts to engage their local communities as well as assess the dangers to law enforcement officers."

Patrick's suggestion responded to the murder of Deputy Darren Goforth in Houston. But when it comes to police officer injuries and deaths, that episode is an outlier. The two areas where a greater opportunity exists to minimize police deaths are to reduce a) traffic accidents and b) suicides. And methods to reduce traffic deaths among cops could have a salutary benefit of reducing bystander deaths as well.

This same senate committee had an interim charge on the same topic which resulted in a report (see interim charge 5, p. 58 of pdf) in 2009. That report pinned the largest risk to police officers on the fact that they spend so much time in cars: "Policing remains a dangerous profession and our delivery method of this public service by automobile is the largest contributor to accidental deaths in Texas and across the nation."

Grits expects the next senate review to result in similar findings as the underlying causes and rates of police deaths haven't changed much in the intervening years. It's possible the Legislature could act to reduce peace officer deaths, but not if they focus on the spectacular cases rather than the typical ones.

RELATED: Speaking of Deputy Goforth's murder, demagoguery by the Sheriff in its aftermath appears even more off base now that it's been revealed that a) Goforth was at the gas station to meet a paramour not his wife, and b) the woman with whom he allegedly engaged in an affair allegedly also engaged in "consensual sexual conduct" with the Sheriff's department investigator assigned to the case! The mind reels at such poor judgment, at least before it begins wondering whether the investigator has engaged in similar behavior in other cases.

Reported Lisa Falkenberg at the Chronicle, "From the beginning, officials at the scene told reporters that Goforth was pumping gas when he was killed. Now we find out that he may have not been pumping gas, or even on duty." Then the bit about the investigator allegedly sleeping with Goforth's mistress transforms this into a truly bizarre and disgraceful episode. Deputy Goforth's murder was a tragedy but the opportunistic way the Sheriff's Department handled the aftermath exacerbated harm instead of mitigating it.

Texas will see most federal drug offenders released

With the advent last year of new rules from the federal sentencing commission, the largest number of federal drug prisoners scheduled to be released in the coming months and years will return home to Texas. An attorney quoted by the SA Express-News explained, “The reason they’re being released is because the Sentencing Commission lowered the guideline, and a judge granted a motion made by the defendant to have their sentence lowered under that guideline.”
More than 50,000 people sentenced between 1991 and October 2014 will likely be eligible for some sort of sentence reduction, with the average change being 23 months, according to the Sentencing Commission. The average sentence under the new guidelines will be 8.5 years in prison.

Nearly 4,000 offenders sentenced by judges in the Western District of Texas, which is headquartered in San Antonio and stretches west to El Paso and north to Waco, are likely eligible for reduced sentences.

Judges in the Southern District of Texas, which includes Houston, Laredo and the Rio Grande Valley, have granted the most reductions, 870.

Most will be released over the next five years as their new prison terms expire.

When it announced the reductions last year, the Sentencing Commission said it delayed releases until November to give the Justice Department, which oversees the Bureau of Prisons, time to prepare for the influx. Many of those being released next month are likely already in halfway houses.
In all, "The Justice Department expects 6,000 low-level drug offenders will be released next month under new sentencing guidelines. About a third will be deported and more than 4,000 will be returning to society. In total to date, 13,187 offenders have received a sentence reduction under the program." Even so, in the most recent period more than 62 percent of federal drug sentences involved mandatory minimums, so the situation has been mitigated but not resolved.

Sunday, October 11, 2015

Bite marks, DNA mixtures among reconsidered forensics

See a couple of Texas stories on reevaluating flawed forensics:

A key metric underlying mass incarceration

More from John Pfaff, this time an interview in Slate, on his theory that prosecutors are responsible for mass incarceration. Here's what I'd call the money quote in the story:
What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.
Here's another brief item quoting Pfaff on similar themes from The Economist. See related Grits coverage and Texas data supporting that thesis.

RELATED: "How to reform the nation's prison system," from The Onion.

Thursday, October 08, 2015

Texas courts illegally jailing motorists for unpaid tickets, and other stories

Here are several more items which merit Grits readers attention even if I don't have time this week to turn them into independent blog posts:
  • Check out a top-notch story from BuzzFeed, of all places, with the teaser, "People in Texas get thrown behind bars just because they can’t afford their traffic tickets. That’s a disaster for people who are already struggling. It’s also completely against the law." The article delivers as promised, read it.
  • See video of an hour-long Texas Tribune festival panel on criminal justice. About half of it was spent on culture-war questions - gun control and the death penalty - and about half on subjects where there was largely bipartisan agreement.
  • Grits disputes the premise behind this headline: How does one measure whether there's a "shortage" of police when crime is down? Maybe there's just the right number and they need to be diverted from wasteful activities like responding to false home burglar alarms.
  • Is it okay for a judge to tell petitioners to F*%# off if they do it in Italian slang? The Commission on Judicial Conduct issued a warning to a Fort Worth JP for such behavior.
  • I'd forgotten that, in addition to the new state data published on police shootings, the Houston PD earlier this year launched a database which includes historical data.
  • See coverage of the disgraced Hill County Sheriff and two of his top managers who were convicted of tampering with government documents, claiming officers received training when they had not. 
  • Contract negotiations between San Antonio and the union broke down because the city refused to drop a lawsuit challenging an "evergreen" clause that keeps the old terms going for ten years after their meet-and-confer contract ends. Good for Mayor Taylor. That's a terrible, antidemocratic provision they should never have agreed to in the first place. It pointlessly ties the city's hands.

Wednesday, October 07, 2015

Texas will comply with PREA, and other stories

Here are a few items which merit Grits readers' attention even if I don't have time this week to fully adumbrate them: