Obama may have stingiest pardon record of any American president

Recently Grits dubbed the President "Obama the Merciless" for his remarkably parsimonious pardon policy, and now a story in U.S. News and World Report takes on the same theme. It opens:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said. That puts him in the running with Presidents George Washington, John Adams and James Garfield, who was assassinated after serving less than seven months.

The story mostly relies on the work of our blog-pal Prof. P.S. Ruckman, who writes at Pardon Power, and whose excellent primary-source work Grits has frequently cited. When Washington and Adams were presidents, of course, there were barely any federal convictions they might conceivably pardon! (It took some years for Congress and the states to enact anything remotely resembling functional penal codes, and most prosecutions at the time were brought as private, essentially civil causes of action.) James Garfield, assassinated seven months in, had a good excuse for his low total.

Otherwise, that leaves Barack Obama with functionally the chintziest pardon record among American presidents, at a time when the raft of criminal convictions during the tuff-on-crime era has spawned more pardon requests than ever. Here's a graphic produced by Prof. Ruckman depicting the proportion of pardons given to those requested since WWII by president:

Even George W. Bush appears compassionate by comparison to Obama. "Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32." Here's Ruckman's depiction of American presidents' historic pardon records before Obama took office:

I don't understand this: Why does the Office of the Pardon Attorney in the Justice Department exist if they consider essentially no one worthy of clemency? How has the President become so dis-empowered on the question that he can't or won't make independent judgments on these questions? Perhaps it's true that the role of advising the President on pardon applications should be removed from the Justice Department and handled instead by some appointed adviser or board who understands their job is to recommend pardons. For reasons Grits can scarcely understand, DOJ's Office of the Pardon Attorney seems to think their job is to find excuses to avoid performing the function for which their division was created, and this president more than any other has acquiesced in the trend. As a constitutional scholar in his own right, Barack Obama of all people should know better.

See prior, related Grits posts:

• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Reform this agency or I'll cut you: Jay Kimbrough returns to TJJD

The Governor's "fixer," Jay Kimbrough, is going to resolve whatever's wrong with the Texas Juvenile Justice Department or else whip out his knife and cut anybody who gets in his way. At least part of me hopes so. If he brandishes it just once more at another government official, Kimbrough's would be the most famous Texan knife since Jim Bowie's! Okay, perhaps it won't come to that, but it's nearly the only way this whole TYC/TJJD saga could get any weirder, and when the going gets tough in Texas, the tough frequently get weird.

Kidding aside, the Texas Tribune's Brandi Grissom reports the remarkable news that Mr. Kimbrough will be returning to TJJD. Her story opens:

The man who has become Gov. Rick Perry's problem solver, Jay Kimbrough, is going back to the state's juvenile justice agency, which is facing a crisis again five years after the last time he helped bail the agency out of a major scandal.

"I am pleased that Jay has agreed to help TJJD as we restore legislative, public and employee confidence that Texas is operating facilities that are safe for both employees and youth,” Texas Juvenile Justice Department Executive Director Cherie Townsend said in a press statement on Tuesday.

Kimbrough, who will be on loan from the Texas Department of Public Safety, where he serves as assistant director of homeland security, served as conservator of the Texas Youth Commission in 2007 after investigative news reports revealed horrendous sexual and physical abuse at juvenile lockups. He will act as special assistant for safety and security at TJJD.

Long time readers will recall Kimbrough was briefly assigned to oversee the Texas Youth Commission in the early days after the media reports revealed the agency had covered-up sex scandals and tolerating abusive employees. He left to make way for Ed Owens' disastrous conservatorship, which sought to turn TYC into a mini-adult prison system, bringing in fumbling leadership from TDCJ as well as an adult security mentality heavily reliant on pepper spray and solitary confinement. Repeating that failed approach would be a nightmare.

On the other hand, it was also Kimbrough who authored TYC's initial moves to reduce youth inmate populations, an approach that has worked well beyond anyone's imagination, allowing the state to close multiple youth prison units while juvenile crime has continued to plummet.

So I'm at least slightly sanguine that Kimbrough's appointment won't necessarily spawn a repeat of the unhappy era when Ed Owens and his associates from TDCJ drew down a bevy of lawsuits and near-rebellion among staff. Whether or not it was Kimbrough's intention to foist adult practices onto juvenile corrections, he's now seen that approach didn't work and he's nothing if not a pragmatic man. A fellow as fond as Kimbrough of bold moves can't help but sometimes make a wrong turn, but in my observation he's not the type of fellow to make the same mistake twice. And he may decide the state should double down on the part of his strategy that did work: Further de-incarceration and shifting responsibility for supervising more delinquent youth back to the local level.

Even longer-time readers will recall Kimbrough's "fixer" stint helping the the Department of Public Safety try to rein in Texas' regional narcotics task forces in the wake of 2005 legislation putting them under the command and control of the DPS Narcotics division. Many task forces simply refused to comply, and the Governor's Criminal Justice Division ultimately eliminated their funding entirely in 2006, shifting the federal grant money which for two decades had supported hundreds of narcotics officers to a combination of border enforcement and diversion programming, with an emphasis on specialty courts. In essence, they shifted responsibility for drug-enforcement downstream to the local level much like TYC shifted responsibility for supervising more delinquent youth back to the counties.

At TYC, Kimbrough had good instincts about reducing inmate populations but not about putting Ed Owens and his TDCJ cadres in charge when he left, to the extent that was his call. OTOH, in my view he knocked the drug-task force issue out of the park. And in both instances, one notes, part of his approach was to eliminate failing institutions instead of reform them, which may give a hint as to one possible approach he could take at TJJD along the same lines.

One of the major alternatives being bandied about is to eliminate most of the rest of juvenile detention facilities (they probably can't get rid of the mental health beds) and shift more money and responsibility to counties to manage delinquent youth. If Kimbrough decides Texas youth prisons are completely dysfunctional, as was the case with the drug-task force system, will he similarly recommend a wipe-the-slate-clean approach? At this point nothing would surprise me.

At least formally, Kimbrough has been brought in as an assistant to Cherie Townsend, though a "special assistant" with the Governor on speed dial won't always be perceived or necessarily behave as a subordinate. Hold onto your hats. The agency is no doubt in for another tumultuous year between now and the end of the 2013 legislative session.

Cameron County DA accused of exchanging 'favorable discretion' for money

In Cameron County, reports AP, federal prosecutors have accused District Attorney Armando Villalobos of

soliciting and accepting more than $100,000 in bribes and kickbacks for favorable discretion, including in decisions to minimize charges, pretrial diversion agreements and case dismissals. His indictment together with his former law partner Eduardo Lucio stemmed from a yearslong investigation that has implicated attorneys, a former legislator and at its center, former state District Judge Abel Limas, who pleaded guilty to racketeering last year.

Prosecutors have a tremendous amount of discretion and when that discretion affects people's lives, it can become a commodity in the hands of the unscrupulous, which is what's alleged here. County Judge Carlos Cascos isn't wrong that "the indictment puts the office under a cloud and would affect morale," but I only agree that's reason to resign if Villalobos really did exercise "favorable discretion" in exchange for money. Indeed, if he did that, the consequences should and likely will be far worse than just losing his job. But those are serious charges and somebody still has to prove them.

'Let Yankees adopt such low callings ...'

Thanks to readers who had kind things to say, in the comments and via email, about my father's recent award. My brother has written about the ceremony, and I put up an item on my personal blog, Huevos Rancheros, ruminating on some of the family history discussed at the event. See "Let Yankees adopt such low callings: Reflections on the making of a southern lawyer."

TJJD contracts questioned

An audit found poor documentation for much of the construction and other contract spending by the Texas Youth Commission, now the Juvenile Justice Department, reported the Austin Statesman's Mike Ward on Saturday. The story opened:

During the past five years, the Texas Juvenile Justice Department relied heavily on change orders to pay for construction work that was not within the scope of the original contracts and failed to document the changes as required, a new audit revealed Friday.

In addition, the internal audit found that in more than half of the files examined, change orders that required the approval of top agency officials had none.

The audit does not provide detail on the contracts. Officials said Friday that those details were not immediately available.

The agency and its predecessor had more than $35.3 million in construction projects under way or queued up during the period that the auditors reviewed. While they reviewed only nine contracts in detail, such samples are commonly used as an indicator of potentially larger problems.

Robin McKeever, the agency's deputy executive director, who was previously chief financial officer with purview over contracts, said that eight of the nine contracts examined in the audit had change orders — more than 30 orders, in all.

On Friday, the agency's 13-member governing board approved new policies designed to curb those problems — the latest issue to buffet a department facing a legislative investigation over safety and security lapses at the Giddings State School and other lockups.

Victoria paper examines jail suicides

The Victoria Advocate yesterday published an informative item ("Victoria County Jail takes steps to stop suicides by inmates," May 7) on Texas jail suicides which opened:

At a time when suicides are the leading cause of death in county jails, Texas jails are following tougher standards to bring down those numbers.

Authorities agree the application of the state's suicide prevention program at the Victoria County Jail helps keep the number of suicides and inmate uprisings to a minimum.

Of the five deaths in the county jail since the Texas Commission on Jail Standards began regulating them in 2009, two were suicides. The other three were listed as natural causes.

Texas once led the nation in jail suicides, but a state suicide prevention program has helped the state shake that stigma.

The statewide rate dropped from 31 in 1986 to 17 in 1994, according to an article by Graham Baker in Texas County Magazine.

The Texas Commission on Jail Standards reported 19 county jail inmate suicides last year.

See the rest of the story for details of strategies being pursued in Victoria in the wake of two recent jail suicides. It should be mentioned there have been some questions about undercounting suicides, but not enough to mitigate the downward trend described in the story compared to the '80s. In any event, as the leading cause of inmate deaths the issue has to remain a central focus of risk management at county jails.

Prison healthcare budget falls predictably short

This news should come as no surprise to Grits readers, but Mike Ward reported in Friday's Austin Statesman ("Report: Texas prison health costs higher than thought," May 6) that:

The cost of providing health care to Texas' 154,000 imprisoned criminals during the next two years will likely exceed the amounts allocated in both the Senate- and House-approved versions of the state budget, a new financial analysis shows.

The report on the University of Texas Medical Branch at Galveston's costs appears to validate the university's earlier assertions that it was losing money on providing the care, and it projects that the prison care could cost $930 million over the next two years — far more than either legislative chamber has appropriated so far.

The new figures counter an earlier "report that triggered intense criticism of the medical school and has prompted a lobbying rush by private companies who contend they can do the job for much less." Bottom line, the latest analysis found that:

In recent years, UTMB and Texas Tech have claimed losses totaling more than $60 million for providing the care, requiring supplemental appropriations several times from the Legislature.

The new financial review projects that the losses will continue for UTMB. Texas Tech costs were not examined.

In 2010, the summary shows, UTMB lost as much as $26.8 million — with actual costs listed at $436.1 million, for which the university was paid only $409.3 million.

During the 2012-13 budget period, the report estimates, the costs for UTMB to provide prison health care could range from $879.6 million to as much as $930 million — depending on whether costs for some physicians, interns and residents are included.

Madden acknowledged that the numbers in the report are significant, "if they prove correct, which I think they will."

This should come as no surprise; it was predictable and predicted; Grits calculated when the budget passed that prison healthcare was underfunded by $126.5 million over the biennium, and here we are, facing projections right at that amount. The lesson: It's possible to significantly cut prison health costs, but not without reducing the size of the prison population. They can't just cut on paper; the state must change policies to reduce costs.

Should TDCJ staff resent giving up Facebook passwords?

The Back Gate posed an interesting question to Texas prison staff and got some animated responses: "Is TDCJ violating your privacy rights by requiring you give them your Facebook password?" Most respondents seemed to be against it and some suspected the agency of ulterior motives: E.g., "This has less to do with keeping us from being friends with former offenders and everything to with keeping an eye on what we might be saying about our own administrations."

Whaddya think? Justified security measure or snooping beyond the purview of a government employer? There are a lot of interesting angles from many different perspectives on that one. How would you prioritize the conflicting values and interests aligned on the question?

Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system -- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.

Adult, juvie corrections took 39% of state employee reductions in last year

After the Texas Legislature finished its budget cutting last year and the dust finally settled, a whopping 39% of Texas state employee reductions in the last year came from two agencies: the Texas Department of Criminal Justice (TDCJ) and the recently merged Juvenile Justice Department (TJJD).

TDCJ lost 2,035 FTEs (full-time equivalent positions), and TJJD lost 816.5, according to a recent state auditor's report (pdf). All told, according to a summary, "As of the end of the second quarter of fiscal year 2012, agencies reported that they employed 147,100.4 FTEs. That was a decrease of 7,321.6 (4.7 percent) FTEs since the end of the second quarter of fiscal year 2011." TDCJ's staff was reduced by 5%, TJJD's by 23%.

Of course, both these agencies suffer from high turnover among front-line staff, so relatively few of those reductions represent layoffs, particularly on the adult side. But Texas' corrections footprint declined in the last year in more ways than just from the closure of the Central Unit and lowered jail populations: Prisons and jails have gone from a reliably expanding government sector to among the first areas to be cut when Texas policymakers must prioritize in the face of tight budgets. That's a big change in political priorities from just a few short years ago.

In 2013 when legislators again face tough, arguably tougher budget choices even than last session, Texas could not conceivably focus employment reductions as heavily in corrections without closing (probably several) more prison units. For these and related reasons, Grits remains convinced that budgets will stymie the growth of the prison-industrial complex long before any brand of moral outrage might convince state leaders to reduce it.

The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors

I was amazed to read that, at Hank Skinner's hearing before the Texas Court of Criminal Appeals seeking DNA testing under Chapter 64 of Texas' Code of Criminal Procedure, the State argued that the Legislature didn't intend to grant relief in situations like this one. In point of fact, and as somebody paid by the Innocence Project of Texas to lobby on behalf of the bill I can say this with certainty: Skinner's case was not only cited in testimony surrounding the bill, his US Supreme Court victory essentially made passage of SB 122 (Ellis/Gallego) expanding access to DNA testing a fait accompli. After that, prosecutors at the capitol seemed to give it up as a lost cause.

In Skinner's federal appeal, the US Supreme Court ruled in his favor to say that if he were denied DNA testing under state law, he could sue under the federal Sec. 1983 civil rights statute (which is especially critical since Texas has no comparable state cause of action for civil rights abuses, though the state does have a special chapter of the Code of Criminal Procedure providing for post-conviction access to DNA testing).

So in the wake of Skinner's US Supreme Court victory, Texas legislators were faced with a choice: They could retain restrictive language insisted upon  by prosecutors in Texas' 2001 DNA testing statute, giving them unilateral grounds for objecting to tests. But if they let prosecutors keep that power, local taxpayers would find themselves on the hook for expensive, time consuming federal civil rights litigation. It was in that context that the Texas Legislature limited prosecutors' discretion to oppose such "Chapter 64" motions, at least when there's a chance it could prove innocence, a move which has already cleared the way for other exonerating DNA testing.

The most famous (notorious?) example may be Williamson County DA John Bradley fighting Michael Morton's DNA testing motion tooth an nail for 6 years before the motion was finally granted and the results cleared Morton's name. Michael Morton was finally granted DNA testing not because John Bradley suddenly saw the light on the road to Damascus, but because the law changed and the grounds on which he'd previously objected to DNA testing under Ch. 64 suddenly vanished. Readers may recall rookie McLennan County DA Abel Reyna had to learn that lesson as well, flat out misunderstanding the law and his own authority before somebody finally explained it to him.

Similarly, consider Kerry Max Cook, a Tylerite who spent 20 years on death row for a 1978 murder, ultimately bartering his freedom for a guilty plea in order to prevent a fourth trial, facing prosecutors who once again said they would seek the death penalty. (Maybe it's happened before, but Grits knows of no other guilty plea to a capital murder where the defendant walked away free essentially for time served - not if responsible prosecutors honestly think them guilty of a heinous act.) At the time Cook went free, DNA testing still a relatively new technology, certainly for East Texas courts and even the Court of Criminal Appeals (this was pre-Roy Criner). Some time later, DNA testing ultimately exonerated him, but never the courts. Even so, as a practical matter Kerry Max Cook couldn't pursue post-conviction DNA testing necessary clear his name formally through the habeas corpus process until recently because of virulent, Bradley-style opposition from a succession of local Smith County DAs. The possibility only glimmered anew after SB 122 stripped away the means by which Smith County prosecutors and judges (in this case kinda the same thing) could prevent him from exposing, with finality and legal certitude, his false conviction as a capital murderer.

So, to return to Mr. Skinner, it's a relief if not a surprise to hear that questioning from the Court of Criminal Appeals seemed to favor liberal access to DNA testing. These quotes were recorded in an account from David Protess at the Huffington Post:

• Judge Elsa Alcala: " [The evidence against Skinner] is not overwhelming. It's circumstantial... If you had tested this... 10 years ago, we would have had results 10 years ago. "
• Judge Cathy Cochran: "Why not just lay all this to rest by doing the DNA quickly? We've had some rather embarrassing incidents in the last couple of years." [There have been 47 DNA exonerations in Texas.]
• Judge Michael Keasler: "Prosecutors should be testing everything... You ought to be absolutely sure before you strap a person down and kill 'em."

Judge Keasler's comments are particularly notable as he more frequently votes with Judges Keller and Hervey on the court's more extremist right wing. Judge Alcala so far ranks among "moderates" on the court, to the extent there is such a thing. Judge Cochran's comment is also notable because she's so often a swing vote among competing conservative factions. Counting heads, if she and Keasler side with Skinner, Grits would offer an educated (perhaps obvious) guess that the ruling will go his way. Reported Brandi Grissom at the Texas Tribune:

Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.

"Prosecutors should be testing everything anyway," Keasler said.

Ouch! That was NOT the response Mr. Mitchell was looking for from Judge Keasler!

Am I saying Hank Skinner is innocent? I have no idea. Will I be surprised if DNA evidence inculpates him? No more than I would if it exculpates. I agree with Judge Cochran that "[The evidence against Skinner] is not overwhelming. It's circumstantial." So why not test? And as the Legislature understood, if the CCA rules against Skinner, the US Supreme Court has said he can file a Sec. 1983 civil rights suit and it's likely a federal judge would order the testing down the line, anyway. That's why, in this non-lawyer's opinion, Skinner's case should be a no-brainer for the Court of Criminal Appeals, not to mention an object lesson for Texas prosecutors on how they approach post-conviction writs and DNA testing going forward.

The worst-case scenario is executing Mr. Skinner, testing posthumously and finding out he didn't do it. Otherwise, if he is really guilty, testing removes all doubt and prevents a great deal of torment and controversy in the future for family and friends of the victim. Since the defense has agreed to pay for testing, at this point there's no good reason, legal or otherwise, not to get it over with. Judging from the media coverage, it sounds like at least five judges on the Court of Criminal Appeals will probably agree.

'Still Convicting the Innocent'

Check out an extended book review from UT Law Prof. Jennifer Laurin of Brandon Garrett's book "Convicting the Innocent" with the same title as this post. Here's the abstract:

In 1932, Edwin Borchard's Convicting the Innocent offered the first systematic attempt to document and describe the existence of Judge Hand‘s "ghost" of the innocent prisoner wrongly convicted. Three quarters of a century later, Professor Brandon Garrett has published a book of the same title with similar goals - but in the context of the game-changing phenomenon of DNA exonerations. Garrett's volume summarizes the vast data collected and analyzed in his study of the first 250 DNA exonerations in the United States, and in so doing offers the most empirically rich and conceptually nuanced descriptive account to date of the machinery of wrongful conviction. Moreover, to ongoing debates over the direction of criminal justice reform, it offers a persuasive and sustained critique of the tenaciously resilient notion that the unparalleled procedural protections of the American jury system are effective checks on substantive accuracy as well. And yet, Convicting the Innocent does not offer quite as powerful an explanatory lens as Garrett sometimes claims, and does not advance the ball of criminal justice policy reform as far as it might. Part II of this Review suggests that the project is hampered in fulfillment of its descriptive and prescriptive agendas by constraints intrinsic to the data at Garrett‘s disposal, and by limitations that Garrett‘s own framing and methodology impose. Part II further offers that modest but important qualifiers and additions to Garrett‘s agenda could enhance the prospect that his worthy contribution to criminal-justice-reform conversations will translate into positive and much-needed change.

Scheck: Better remedies needed on prosecutor misconduct

Barry Scheck of the national Innocence Project (with whom, in the interest of disclosure, my employers are affiliated through the national Innocence Network) has an  op-ed in the Austin Statesman today titled, "Errant prosecutors seldom held to account." Wrote Scheck, "as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren't investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less 'harmless' intentional misconduct in cases in which the defendant was guilty."

Incidentally, the Yale Online Law Review essay Scheck mentioned is an especially effective discussion of prosecutorial misconduct and its oversight, or the lack thereof. Here's a sample from their description of the dilemma:

What little evidence we do have indicates that prosecutorial misconduct is a serious problem. A 2003 study by the Center for Public Integrity, for instance, found over two thousand appellate cases since 1970 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Another study of all American capital convictions between 1973 and 1995 revealed that state post-conviction courts found “prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty” in one in six cases where the conviction was reversed. Other scholars and journalists have also documented widespread prosecutorial misconduct throughout the United States.

Available statistics significantly underreport the extent of prosecutorial misconduct, not only because of the empirical challenges discussed above, but also because courts have embraced a “harmless error” standard when reviewing criminal convictions. In order to win a reversal, a defendant must not only prove misconduct, but must also show that the misconduct substantially prejudiced the outcome of his or her trial. Courts can therefore avoid making a finding of misconduct altogether by finding that the alleged error, even if proven, was harmless. By reducing the likelihood of reversal, the harmless error standard substantially weakens one of the primary deterrents to prosecutorial misconduct. Knowing that “minor” misconduct is unlikely to jeopardize a conviction on appeal, prosecutors may be more likely to bend the rules in the pursuit of victory.

There is an obvious need for an effective check on prosecutorial misconduct. Yet, as this Essay will show, no such check currently exists. (Citations omitted.)

Returning to Scheck's column, he recited some Texas data Grits has adumbrated in the past, then asked, "What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney's office accountable for intentional acts of misconduct by line prosecutors."

Arguing to limit the absolute immunity from civil liability presently afforded prosecutors, Scheck added, "While we all agree that prosecutors juggle enormous responsibilities and should not be gratuitously second-guessed, it's worth noting that no other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct — not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers." He then echoes a point made by UT law prof Jennifer Laurin that the external controls the courts say should substitute for civil liability are largely dysfunctional:

What about internal systems that the district attorney groups claim will prevent misconduct? With a handful of exceptions — primarily offices that have "conviction integrity units" designed to address miscarriages of justice and misconduct — most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts — quality assurance and control protections we routinely require in hospitals, financial institutions and factories.

Similarly, relying on judicial monitoring and reporting of misconduct has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.

The column closed suggesting a few other possible remedies for prosecutorial misconduct besides expanded civil liability: "Solutions discussed include developing better internal systems to deal with misconduct, greater oversight from the disciplinary arms of state bar associations, better reporting of misconduct from judges with better systems for dealing with their complaints, and the creation of an independent state agency with the authority and resources to investigate allegations of prosecutorial misconduct."

MORE: The Statesman paired Scheck's op ed with one from Shannon Edmonds of the prosecutors' association, who argues that "Prosecutors rarely go wrong, should not be hindered."

See related Grits posts:

• Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?
• Blackwell: Texas state bar 'not set up to oversee prosecutors'
• Michael Morton, John Thompson highlight prosecutor misconduct forum
• Study: Prosecutor misconduct in Texas rarely disciplined
• Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight
• Professor Jennifer Laurin previews forum on prosecutorial misconduct
• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?

Tyler-bound: Congrats to my Dad on local lawyerly honor

I'm headed to my hometown to see my father, Tom Henson, honored on Friday with some sort of lifetime achievement award - the "Justinian" award, I'm told - from the local bar foundation as part of "Law Day" celebrations.

My father says "Law Day" was created during the Eisenhower Administration as a counter to the labor-themed "May Day" celebrated on May 1 in communist countries and certain US immigrant communities, which is a backstory I'd never heard before. He also tells me in Smith County, perhaps unsurprisingly, it's generally celebrated with vigor. So, congratulations to my Dad on this well-earned commendation, and Tyler here I come. Sad to say it's been a while.

Blogging will be light to non-existent until I return this weekend, so use this as an open thread to talk about whatever comes to mind. But be respectful of my pops; whatever you don't like about me I assure you ain't his fault!

Obama the Merciless

For reasons Grits couldn't begin to explain, President Barack Obama has among the stingiest records among presidents when it comes to pardons, commutations and clemency decisions in general - so bad Grits has suggested it compares unfavorably to Texas Gov. Rick Perry, who at least hasn't let his executive power on that score completely atrophy.

Late last year P.S. Ruckman tallied up Barack Obama's sorry total, and recently he calculated that President Obama ranks near or at the bottom both in both the number of months in his term during which he granted clemency (3) and the longest number of months without issuing clemency at all (24). So far, Obama has issued 22 mostly meaningless pardons, typically given to older folks (average age 61) for petty, long ago crimes, plus one sentence commutation since taking office. He's on track to grant fewer pardons and/or sentence  commutations (by far) than any president at least since World War II, all but completely ignoring this already withered and decrepit constitutional function. Meanwhile, here's the impressively long list (pdf) of requests for commutations of sentences President Obama has denied since taking office.

Grits doubts this will become a partisan campaign issue, but when it comes to exercising the clemency power, one could justly refer to the President as "Obama the Merciless."

Prosecutors whiff on Pettite testimony at Roger Clemens perjury trial II

Roger Clemens' second perjury trial demonstrates the dangers of pursuing criminal prosecutions based on the personal political agendas of members of Congress. Much has been made of the fact that pitcher Andy Pettite told Congress he recalled Clemens telling him he'd used HGH, though he said in a past deposition he could have misunderstood the Texan pitching ace. In any event, he had never been cross-examined over the statement. When he was, according to the Washington Post, Pettite:

admitted that he might have misunderstood his close friend admit he took performance-enhancing drugs in 1999 or 2000.

Under cross-examination by defense lawyers, Pettite agreed that there was a “fifty-fifty” chance that he misheard Clemens when he testified earlier that “The Rocket” had confided in him that he had taken the drug Human Growth Hormone.

And with that the feds' case likely went down the drain. What a waste of time and money this witch hunt has been! Now it seems that Clemens will likely walk (and good for him): Pettite's testimony was what held the case together, with the only other witness a discredited, self-interested snitch trying to weasel out of prosecution himself.

Grits remains amazed that Congress and federal prosecutors have focused on baseball players and track stars when the much more problematic use of steroids from a public policy perspective occurs among cops and federal security contractors. Such skewed priorities IMO stem from sheer geek envy of jocks (and likely also undue deference to the security apparatus). Politics has been aptly called "show business for ugly people," and politicians compete with celebrities for the scarce commodity of public attention. Neither members of Congress nor federal prosecutors will ever hurl a fastball like Roger Clemens nor run as fast as Marion Jones, so some insecure pols feel the need to take such public heroes down a notch to elevate their own (oft-sullied) class. Sure, the public policy concerns abut cops and security contractors buying and using steroids from the black market have much more critical implications for the public than whether Roger Clemens juiced at a time when there was no law or Major League Baseball regulation banning it. But investigating those far more serious issues wouldn't get everybody's picture in the paper, at least not as often or predictably as hounding a celebrity from the capitol to the courts on trumped up charges.

For more, see a dedicated blog on the case at the Houston Chronicle.

Mississippi ousts GEO Group at three facilities

In Mississippi, "the state's corrections commissioner on Friday said that [the GEO Group] would no longer operate three [private prison] facilities in the state, which held 4,000 inmates," NPR reported recently. Regrettably, Mississippi is seeking another contractor instead of taking their management in-house or downsizing youth facilities, as Texas has done.

Now to be clear, a state that, in the 21st century, voted 2-1 to keep the Confederate battle logo as part of its state flag (you don't really see it flying much in any of the come-to-Mississippi tourism commercials, do you?) doesn't really care what us Texans, DOJ, or anybody else thinks about them. They ousted Geo out of their own self interest, so as another of GEO's customers, Texas should naturally consider why.

The decision comes in the wake of legal setbacks for the company in federal court involving abuse allegations at a juvenile facility, though GEO insisted their departure is unrelated and adamantly denied the charges. Even so, "the judge's [March settlement] order ... said an investigation by the plaintiff's counsel 'uncovered pervasive violations of state and federal civil and criminal law and a wholesale lack of accountability by prison officials. For example, staff of the [facility] and those responsible for overseeing and supervising the youth engaged in sexual relationships with the youth; they exploited them by selling drugs in the facility; and the youth, 'handcuffed and defenseless[,] have been kicked, punched, and beaten all over their bodies.''"

To make matters worse,"Staff at the center failed consistently to report and investigate claims about excessive use of force, even though they witnessed many of the acts, the judge wrote. 'Given that the facility employs correctional staffers affiliated with gangs, no more can be expected.'" Finally, "The judge also noted a Justice Department report, which confirmed many of the allegations and said the state of Mississippi was 'deliberately indifferent' to the constitutional rights of the young inmates."

Whatever proximate cause anyone wants to attribute it to, when federal judges start saying things  like that about your government contract, it's understandable one might decide it's time to pack up and leave town!

Texas has closed many of its juvenile facilities and may soon end up closing the rest of them, shifting juvenile supervision wholly to the counties and more aggressive community-based programming. It's too bad Mississippi looks like it will continue  contracting management of these facilities instead of taking the opportuntiy to pull them in-house or, better, downsize. I'm not sure  just finding another profit-driven management contractor will solve the problems the judge chastised them over.

RELATED: From Texas Prison Bidness, "GEO Group subject of lawsuit in prison death at Central Texas detention center." Also, "GEO guard indicted for contraband at Val Verde Correctional Center."

Sale of Imperial Sugar, Central Unit closure denote end of an era

Picture via 'Leadbelly: Life, Legend, Legacy'

Imperial Sugar is selling out to an international conglomerate the year after the Texas Legislature chose to close the Central Unit (formerly the Imperial unit) which was an early center of convict leasing that made Imperial a lucrative enterprise a century ago, with labor costs not much higher than a slave owner's. Grits finds it ironic that both institutions should dissolve so close to one another, as though their fates were somehow entwined.

In the book Texas Tough (pp. 205-206), historian Robert Perkinson said the Imperial unit's expansion and renaming as the Central Unit came in the face of calls for reform out of New York and "signaled that Texas's penal system would develop on its own terms, rooted in the Texas slavery belt and devoted, above all, to plantation production."

It was at the Imperial/Central unit that Texas Governor Pat Neff supposedly promised Leadbelly, the great murderer-minstrel (pictured), his pardon, famously delivered on the final day of his administration. Now the plantations are gone, the Central Unit has closed, and Imperial Sugar in all likelihood will no longer exist as a brand. For southeast Texas, the sale of Imperial Sugar in some ways provides a capstone for a confluence of events that, taken together, amount to the end of an era. Indeed, one hopes history may some day identify it as a signal point, a prelude to a new era.of deincarceration and even more prison closures. Perhaps it's crazy to imagine, but stranger things have happened, many of  them right there in Sugar Land.

Two latest Dallas DNA exonerees spent nearly 30 years behind bars

Congratulations to James Williams and Raymond Jackson, Texas' two latest DNA exonerees out  of Dallas who were liberated yesterday after a nearly unimaginable 29+ years inside based on false accusations of  rape and kidnapping. Reported a local TV station, "Their biggest hurt? Relatives, including their mothers, died believing they were criminals."

As an aside, the Fort Worth Star-Telegram coverage mentioned that "Dallas County has now exonerated 32 people since 2001, most of them during Watkins' tenure. Most of the cases -- including Monday's -- involved faulty eyewitness identifications." But it should be mentioned that that figure only includes DNA exonerations and a handful of non-DNA exoneratoins under Craig Watkins. There was also the infamous Dallas fake-drug scandal from 2001, where police officers collaborated with a corrupt informant to set up two dozen  innocent, mostly Spanish-speaking immigrants on false drug charges. Adding in those alone gets you at least 56 over that time span. Most counts you see of exonerations include only DNA exonerees,  not the large coterie of drug war cases like those in Dallas, Hearne, and Tulia.

Serendipitously, Mr. Williams "has re-connected with his childhood sweetheart, and she says they're now engaged to be married," while Mr. Jackson has reconnected with his family. Grits wishes both of them all the best.

Read more here: http://www.star-telegram.com/2012/04/30/3924291/2-dallas-men-cleared-in-1983-rape.html#storylink

Droning away: Which agencies requested FAA permission for spy drones?

Which Texas police agencies  and  educational institutions have requested permission to  use unmanned drones from the Federal Aviation Administration? Reports Texas Watchdog, via EFF:

Texas is home to many: the Houston and Arlington police departments; the Texas Department of Public Safety; the Hays County Office of Emergency Management in San Marcos; Texas A&M University Corpus Christi; Texas A&M – Texas Engineering Experiment Station in College Station and Texas State University in San Marcos

Further,

See a map of the agencies given permission to fly drones here.

EFF officials also obtained a list of private drone manufacturers authorized to fly drones domestically.

Central Texas races hinge on public perception of prosecutorial influence

According to recent campaign disclsures, challenger Jana Duty has "lapped" incumbent William County District Attorney John Bradley in fundraising. She had $115,000 on hand as of the most recent reporting  period compared to $35,000 for the incumbent, reported the Austin Statesman.

That's a substantial lead, but it's probably not TV money and not enough to make the race a slam dunk. If you want John Bradley ousted as District Attorney, you might consider helping Ms. Duty add to that lead. Or, obviously, if you'd prefer to see Williamson County voters return Mr. Bradley to power, donate to his campaign (though honestly I couldn't tell you how even after closely examining his website). This is the homestretch and this final month of campaigning - more than all that's gone on before - will determine the outcome of this extraordinary race.

I've never before wished to live in Williamson County, but it'd almost be worth it just to get to vote in this primary. (I'll leave readers to guess Grits' preference.)

Meanwhile, in Travis County the incumbent, Rosemary Lehmberg has a more typical fundraising edge over challenger Judge Charlie Baird, but the former District and Court of Criminal Appeals judge has been campaigning harder than the incumbent DA, judging both from outward appearances and campaign expenditures. In a weird, belated, low-turnout primary two weeks after city elections, theirs will be the most prominent race on Travis County Democratic ballots. If Baird can raise sufficient funds in the homestretch to be competitive on television, my take is that he's got a real shot at an upset.

Though Grits likes and respects both candidates, I've said before I prefer Charlie over Rose in this race for one simple reason: Inertia. Lehmberg joined the Travis DA's office in the '70s, was the first assistant for long-time DA Ronnie Earle's final 12 years, and was elected over a group of much less experienced candidates than Baird as Earle's heir apparent. Throughout most of her time there, Travis County was considered the most progressive DA's office in the state, though today that mantle has been usurped further up I-35 in Dallas. That much departmental history makes her understandably but regrettably resistant to change. Sometimes it seems as if her institutional investment in how they've always done things gets in the way of improving the system she works in or learning from obvious mistakes.

I'm thinking, for example, of the questionable confessions contradicted by DNA evidence in the Yogurt Shop murders. (The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit heard a presentation on the case at an event they sponsored to educate themselves and the public on the subject of false confessions.) How a DA reacts to exonerating DNA evidence tells you a lot about their mindset. They can admit a mistake, apologize, and continue the search for the real killer(s), perhaps even revisiting other confessions obtained by the same detective (in Austin's case Hector Polanco, who  notoriously, tragically extracted a false confession from Christopher Ochoa as well as the Yogurt Shop defendants) or they can spin out new theorems about some unindicted co-ejaculator, a hypothetical fifth mystery suspect supposedly present with the accused but accounted for neither in the questionable confessions nor the prosecution's theory at trial. Grits was disappointed the incumbent at first chose the latter path before finally, grudgingly recommending charges be dismissed. Also, I've been  dissatisfied that local jail diversion strategies haven't been more successful or always available to defendants with appointed counsel. I don't know that I'll agree with Judge Baird in every instance, but he has the experience and mettle for the job, and I'm confident he'd be more open to change than the incumbent.

Speaking of the Yogurt Shop murders, the prosecutor in that case, Efrain De La Fuente, is running to replace retiring Travis County District Judge Mike Lynch presiding over felony cases. De La Fuente is opposed by a long-time Austin defense attorney David Wahlberg, who told the Austin Statesman:

that most of the felony District Court judges had worked as prosecutors before taking the bench. He said it is dangerous to have prosecutors and judges who are too alike.

"I don't mean to say they are bad people," Wahlberg said, "but ... if you have spent your career as a hammer, everything looks like a nail. I feel like we need a different perspective."

That's certainly my view, and  the main reason Grits supports Wahlberrg in the race. Indeed, whether primary voters agree with that sentiment - that an aggressive prosecutorial mindset exerts too much influence over a bloated and inefficient justice system - may determine the outcome of both this and the other two races described in this post, and arguably the Harris County DAs race as well.

Might Texas close more juvie lockups in wake of ongoing woes?

In response to the latest accusations of abuse and violence at Texas youth prisons, reported Brandi Grissom at the Texas Tribune, "some advocates are urging lawmakers to consider closing more state youth institutions."

Given that Texas youth prison populations have already declined by around 2/3 since the 2007 "reforms" (which, since they apparently haven't reformed much, perhaps henceforth we should just call "changes") while juvenile crime has continued to fall, perhaps now's the right time to finish the remarkable de-institutionalization of juvenile justice begun five years ago.

California is doing the same thing on a much smaller scale to reduce prison populations in their adult system - shifting supervision of lower level offenders to counties in a process they call "realignment." Texas counties may not relish the new responsibilities for dealing with the worst behaved youth that comes with realignment in the juvenile justice system, but by all indications over the last five years it has generated superior  outcomes. It makes sense at this point to double down on the policy.

Houston PD property room failing at customer satisfaction

Houston PD continues to either lose evidence from its property room or sometimes sell or destroy without consent from the owner, including crime victims and their families, reported the Houston Chronicle. The article ("HPD track record with seized property takes another  hit," April 30) focuses on the stuggle of a drowned woman's family who was shocked to learn HPD had auctioned off her personal effects a year and a half before the trial date of her boyfriend who was accused of killing her (he was acquitted). Said her mother, "They stole from my deceased daughter. They're doing the same things they arrest people for." Here's reporter James Pinkerton's overview of the problem:

Houston police have a long history of mishandling property in their control, including a case resulting in a landmark 1990 federal appeals court ruling that held lax HPD policies made it easy to violate a citizen's constitutional rights against unlawful seizure of their property.

The U.S. Fifth Circuit Court of Appeals upheld a jury's award of $147,779 to a Houston couple whose stereo equipment, video recorder, cameras, jewels, gold coins, hunting rifles and other property had been seized by Houston police. When the couple obtained a court order for the property's return, they learned most of it had been sold in two auctions and the rest was converted to police use. 

In 2007, two HPD property room supervisors were suspended after 35 firearms turned up missing from the property room, including two that had resurfaced in the possession of criminal suspects. In 2004, HPD acknowledged that evidence from 8,000 criminal cases, going back to the 1960s, had been found in 280 boxes that were improperly labeled and stored. 

Houston Police Chief Charles McClelland ,,, said employees of the department's $13 million property room are not perfect. But he noted the 59,000-square-foot property room, which opened in June 2009, earned certification from the International Organization for Standardization in October, the only police property room given that certification. 

"We have human beings working in the property room," McClellend said. "People make mistakes. People in your business make mistakes. No one's perfect, and when you're dealing with that type of inventory of property and evidence, something can go to the wrong place, get mislabeled." ... 

Capt. Charles Vazquez, who heads the HPD property room, said there are 380,000 separate items currently in storage, and employees know where the "overwhelming majority" are located. "I'm not saying we could get every single item," he said.

Grits was particularly interested to learn that only a fraction of evidence released from the property room actually makes its way back to it rightful owners. "Last year, police checked in 65,000 items and disposed of another 24,000 items, including 8,200 returned to their owners. The other items were either auctioned off, donated to charity, converted to police use, destroyed or returned to the HPD division that checked them in." Some of that is because of drug evidence destroyed, but I'll bet a  more detailed investigation or audit into what happened to the rest of the evidence, particularly that which was "converted to police use ... or returned to the HPD division that checked them in," would be instructive.

It's difficult to accept the "nobody's perfect" excuse from management for such a recurring problem. This isn't a one off. When you're dealing with processes involving that much property and data (especially when it's other people's property), the system needs adequate checks and redundancies to make sure evidence isn't lost or improperly disposed of.  Ask inventory trackers at Walmart, or for that matter UPS. With technologies and processes available in the 21st century, the only reason these systems aren't more professionalized is that management and budget writers haven't prioritized their upgrade.

Too often police property rooms are an employment backwater within law enforcement agencies, frequently a place where officers are assigned when they have disciplinary problems or have been deemed unfit for field duty. (Charley Wilkinson of CLEAT boasts that many police union locals have been organized by disgruntled employees assigned to the property room as punishment.) I've no knowledge of specific staffing patterns at HPD, but frequently professionalism in this area is diminished by the (often accurate) perception among officers and management that property room duty amounts to second-class status, contributing to sloppy evidence retention practices. Grits would prefer to see property rooms run by dedicated, civilian professionals instead of sworn officers. Managing inventory is something big companies do all the time with far lower error rates and superior customer satisfaction.

See related Grits posts:

• Dallas DNA exonerations expose evidence retention flaws
• Senate bills encourage retention, testing of old DNA evidence
• 'The DNA's over there ... right next to the jelly': Problems with evidence preservation in Texas
• Using DNA in nonviolent offenses would swamp crime labs, evidence rooms
• 'Missing evidence among military crime labs new problems'
• Big D: Shopping Mecca
• Sex toys, guns walk away from Houston evidence room
• Nueces County cleaning up evidence room mess; how many others are just as bad?
• Police evidence rooms are 'red-headed stepchildren' of law enforcement, Integrity Unit told
• Galveston, Brazoria Counties react wisely by dismissing cases after evidence thefts
• Evidence retention failures thwart pursuit of innocence claims
• Enough weapons missing from Houston's property room for a 21-gun salute
• 500 guns missing from TX police evidence room in 'illegal firearms trafficking scheme'

Drug analyst at DPS crime lab issued erroneous reports

The following notice was posted on the Texas District and County Attorneys Association website on Friday:

ALERT: DPS Houston Regional Crime Lab Issue 

Posted: Friday, April 27 

Yesterday, DPS sent an email to the prosecutor offices that use the DPS Houston Regional Crime Lab. To ensure all affected prosecutors are aware of this situation, we reprint it verbatim (without attachments) here: 

Dear District Attorney: 

The Department of Public Safety has discovered errors with the analysis of drug evidence conducted by one forensic scientist in our Houston Regional Laboratory. He has been suspended from casework pending an internal investigation. In reanalyzing evidence in one hundred of his most recent cases, we identified errors in two other cases. Because of this discovery, we believe it prudent to review his entire body of work since he began examining evidence in early 2006 – specifically on any cases pending prosecution or which resulted in a conviction or deferred adjudication. Attached is a list of cases from your jurisdiction. If you wish to have the evidence in any of these cases re-analyzed by another DPS Forensic Scientist, please contact Laboratory Manager Keith Gibson at [redacted]. We will then arrange with the law enforcement agency to obtain the evidence from them and complete the re-analysis. A new lab report would then be issued. 

We are sorry for any inconvenience this may cause and are taking additional steps to prevent any such occurrence in the future.  

Keith A. Gibson

Regional Laboratory Manager 

Texas DPS Houston Crime Laboratory

After talking to several affected prosecutors, the general consensus is to follow a protocol that looks something like this: 

1. Notify the courts of the issue.
2. Notify the local criminal defense bar.
3. Pull all of the cases on the list provided by DPS – check the disposition for convictions.
4. Find the evidence, if it still exists, and submit for retesting (DPS or your local departments may have it).
5. For any case with a bad retest, or cases with now-destroyed evidence, request that the court appoint an attorney to take the case through a writ process if appropriate.

Odds and ends: From DNA exonerations to the drug war

Here are a few odds and ends that may interest Grits readers.

Pair of Dallas false convictions to be overturned after 28 years
Two more Dallas men this week will begin the formal exoneration process after 28 years incarcerated based on a false conviction. Thanks to DNA, the real suspects have now been identified.

Constables performed private work on county time
Until recently, some Harris County constables were supplementing their income with contract work delivering eviction  notices for landlords while on duty. Three precincts stopped the practice after it was first publicized. Five others still  perform the function, and "None of the constables contacted agreed to release documents relating to their notice delivery business."

Dallas DA rectifying prosecutor misconduct
On page four of the Dallas DA's quarterly newsletter (pdf) is an item titled "District Attorney agrees to vacate conviction of Ricky Dale Wyatt based on prosecutorial misconduct in 1981 aggravated sexual assault." In Dallas over the weekend, a criminal defense attorney told me that in 25 years of practicing in Dallas, he'd never had a prosecutor hand over exculpatory evidence (i.e., "Brady  material") until Craig Watkins took office and threatened to fire those who didn't comply with the rule. See their past newsletters.

'Rocket docket' for trials
In San Antonio, Bexar County judges are planning a series of back-to-back trials to catch up on their backlogged docket, but the District Attorney says it creates too much work for them. They're calling it a "rocket docket," which is a term usually reserved for plea-mill scenarios as opposed to taking cases to trial.

Reduced jail pop credited with passed inspection
The Harris County Sheriff credited the decline in inmate numbers for helping the Harris County Jail pass inspection this year 

Prison chapel isn't open court
A trial held in a prison chapel does not satisfy the requirement for an open court, ruled the Texas Court of Criminal Appeals. More from Liberty and Justice for Y'all.

Praising prison ministry work
A couple involved in a prison ministry program received the Governor's 2012 Criminal Justice Volunteer Service Award. Also, see this profile of a Pennsylvia ex-offender moving to Texas to work in a Dallas-based prison ministry after being sentenced to life without parole as a 17-year old in 1977, released as a result of a 2010 US Supreme Court decision declaring LWOP for juveniles to be cruel and unusual punishment.

'Life without parole is a terrible idea'
So argues Houston attorney David Dow in The Daily Beast.

Immigration law as family law: Unescorted minors captured at border rises
Illegal immigration overall is way down, but for some unexplained reason authorities have seen a sharp rise in the number of unescorted minors captured making the illegal crossing. "From October 2011 through March, 5,252 kids landed in U.S. custody without a parent or guardian — a 93 percent increase from the same period the previous year." This raises the biggest pragmatic concern about git-tuff immigration policies like those pursued by the Obama Administration: As a practical matter, immigration law is mostly a subset of family law. If these kids are coming to be with family members on this side who can't resurface without deportation, it raises a particularly poignant dilemma.

Even cartel guns not smuggled from US mostly come from here
Two thirds of guns where Mexican authorities seek to match serial numbers to US records turn out to have come from the United States, reports the Texas Tribune, news punctuated by a recent arrest of a US trucker smuggling 268,000 rounds of ammunition southward. My friend Alice Tripp from the Texas State Rifle Association correctly points out that that doesn't mean that 2/3 of guns used by Mexican cartels were illegally smuggled from the US. But I don't discount the 2/3 number as much as she because the two other major sources of cartel weaponry also involve guns originally made in the United States: Most prominently, the United States spent decades funneling weapons to fight proxy wars against Marxists and nationalists throughout Central America right up until the Cold War ended. Less well publicized, defectors from the Mexican military and police often take weaponry with them when they go which was often purchased from US manufacturers, secured through US aid programs, etc.. So even the weapons that weren't illegally smuggled into Mexico often ultimately, originally came from the United States, often by perfectly legal, even US-government sponsored means. Gun smuggling southward is a real thing and a serious concern, but even if the flow of smuggled US guns stopped tomorrow, there are plenty of other sources to ensure that won't be the pivotal element that stops the killing.

The Case of the Bluffing Referees: Corruption allegations swirl around contract privatizing El Paso truancy enforcement

An extraordinary,  near-mind blowing tale of graft and greed out of El Paso left this reader's jaw adrop. (The story by Zahira Torres is also an early frontrunner for Understated Headline of  the Year: "New Beginnings anti-truancy program failed to deliver on promises to EPISD," El Paso Times, April 28.) Despite the bland headline, with every unfolding paragraph it's clear this is a much more insidious tale involving not just failed policy but a grotesquely deformed, insular and graft-driven juvenile justice system.

In short, for a pricetag of nearly 20 times what it would have cost the County Attorney to do it both legally and in-house, El Paso juvenile court Judge Alfredo Chavez convinced the school district to contract with a private company to "bluff" truancy enforcement -- a tactic that worked only until students and their parents figured out that the private "referees" had no authority to carry out their threats (which included dropping students from school rolls and even ordering youth to Mexico). This multi-million dollar contract went to men now under indictment on El Paso bribery charges related to a second judge on the county juvenile board. Now, everyone is under investigation.

Back in 2004, El Paso ISD asked juvenile court Judge Chavez to "assign two part-time referees -- court employees who could hear judicial cases -- to the truancy program," reported the El Paso Times. The County Attorney came forward with a proposal to do the job for around $50,000. Instead, Judge Chavez brokered a contract between El Paso ISD and "New Beginnings, a local company run by Cirilo 'Chilo' Madrid and Ruben  'Sonny' Garcia, would spearhead the program. Both men now face federal fraud charges for allegedly bribing County Judge Dolores Briones in exchange for her vote on an unrelated government contract for another company, LKG." Reported the Times, "New Beginnings is now being investigated by the FBI for the $3.2 million in contracts it obtained from the El Paso Independent School District over the five-year period ended in 2007."

New Beginnings reportedly couldn't and didn't perfom the court functions being privatized, instead constructing what seems from a distance almost a surreal Potemkin Village where company officials would bamboozle kids and their  families: "as a private company, New Beginnings did not have the authority to impose legal sanctions on truancy offenders.," wrote Torres. "The company instead would hold mock court hearings before students reached the stage that a real court appearance was necessary. It was a program that one district administrator called 'a bluff factor.'"

So, instead of working with the County Attorney's office to actually establish a truancy program - a subject fraught with its own issues independent of alleged corruption, to be sure - Judge Chavez pushed to privatize the process for $925,000 per year, having it overseen by company-paid "referees" with no legal authority who tried to "bluff" youth into accepting their unofficial edicts, which some unwitting youth probably did, at least in the beginning.

It gets worse, though, when we get to the judgments being meted out by corporate "referees": "notes from a meeting in 2006 in which participants discussed problems with New Beginnings, mentioned concerns with ordering students who were younger than 18 to be dropped for attendance, ordering students to return to Mexico, the truancy court's lack of law enforcement authority and the fact that New Beginnings did not file cases with the justice of the peace courts but instead left that task to school districts." (emphasis added, and then some: Santa Madre de Dios!)

Pretty soon, even the kids saw through the scam and the program ended in 2007 because:

El Paso Independent School District leaders saw a steady decline in attendance rates while the company had the truancy court program.  

State records show that the attendance rate at the district was 95.4 percent in 2004-05. That number dropped to 95.3 percent in 2005-06 and further decreased to 95.1 percent in 2006-07.  

Mark Mendoza, the district's former pupil services director, cited those figures in 2007 when he persuaded school board trustees to end the contract with New Beginnings and implement an in-house dropout recovery and truancy program. The program run by the EPISD does not include the truancy court component. 

"There was a bluff factor that was used," Mendoza said. "People thought that it was a court and, so, during their initial time with New Beginnings, the attendance increased temporarily. Once they figured out that this was not a court and that there was really no teeth behind it, then the attendance for the students would drop in every single case."

At least two of the six county juvenile board members, both judges, have been accused of steering lucrative juvenile contracts in El Paso to Mssrs Madrid and Garcia:

The board then in a 6-0 vote approved appointing two part-time referees who would be paid by the district's contract with New Beginnings. The board members were Chavez, Judges Patrick Garcia, Alex Gonzalez and Bonnie Rangel, Justice of the Peace Guadalupe Aponte and County Judge [Dolores] Briones.  

Briones pleaded guilty on Dec. 9 to a charge of conspiracy to commit theft or embezzlement of federal program funds. She was implicated in a scheme to take kickbacks from a federal grant linked to LKG Enterprises.

As mentioned, this jaw-dropping tale left Grits feeling downright naive. Juvenile  boards are a seldom-examined political backwater where few reporters venture, and quite frankly even fewer understand what they're reporting on. I can't help but wonder how many other similar examples one would find if reporters or auditors comprehensively examined school-district and/or juvenile board contracts on truancy in other jurisdictions? Would they discover similar shennanigans in Dallas, or Bexar?

For that matter, this catastrophic failure makes me wonder at the overall strategy of Texas post-2007 juvenile justice reforms, which have been recently called into question for other reasons. The Legislature's big-picture strategy under Chairmans Sen. John Whitmire and Rep. Jerry Madden has been to rapidly de-incarcerate youth prisons and shift focus to grant-funded community-based programs administered locally. El Paso ISD's contract with New Beginnings ended just before the 2007 statewide reforms. But still, this sun-town saga makes me wonder whether adequate oversight infrastructure exists to monitor those contracts?

Grits tends to operate on the assumption that most folks are acting in good faith until they give me reason to believe otherwise. This bizarre, corrupt episode makes me call such assumptions into question. It would never occur to me that local juvenile judges might so  brazenly abuse their authority, though I guess after the judge in Pennsylvania was convicted for taking kickbacks for  sending youth to a private facility, one shouldn't be surprised. Even so, I must admit, I am.

Read the full story at the El Paso Times, it's quite a tale.