Austin film event: Meeting the Murderer

I received email notice of an upcoming Austin event featuring a film and discussion of restorative justice and in particular the sort of victim-offender dialogue described in this recent Grits post. Here are the details:

The Texas Coalition to Abolish the Death Penalty and Trinity United Methodist Church present

From Violence to Restorative Justice
A Screening of the documentary “Meeting with a Killer: One Family’s Journey”

Tuesday, May 8, 2012, 7:00 p.m. - 8:30 p.m.

Trinity United Methodist Church
4001 Speedway
(northeast corner of 40th and Speedway)

Join us as we watch one family’s journey to forgiveness and reconciliation following the murder of their loved one. After the screening, a discussion will be led by Ellen Halbert, the professional mediator who helped make this real-life mediation possible.

Ellen Halbert has been involved in the criminal justice system for over 25 years. In 1991, she was appointed to a six-year term on the Texas Board of Criminal Justice. She was the first victim of crime - and first female - to serve on the nine-member Board that oversees the massive criminal justice system in Texas. Ms. Halbert is presently the Director of the Victim Witness Division at the District Attorney's Office in Travis County, Texas.

Refreshments will be served.
This event is free and open to the public.
Free parking is available in the lot across the street from the church.

We're all safer now: Austin teacher busted for .033 oz of pot

Reports Austin's KXAN-TV:

An Austin high school geography teacher has been arrested and charged with having marijuana and paraphernalia at his home, which is located within 1,000 feet of an elementary school.

Police had a search warrant for Ian Kristofer Grayson's single-family residence in the 6000 block of Leisure Run Road, located near Odom Elementary School.

Grayson, 34, has been a teacher at Austin High School since 2009, and from 2006 to 2009 he taught world history at International High School.

During the search, officers found .033 ounces of marijuana in two different glass containers and also in a trash container, which was empty except for the bag of pot and drug paraphernalia, according to Austin Police Department. Marijuana pipes, residue and other paraphernalia were found in various locations inside the home, including his bedroom, according to the arrest affidavit.

Since when does Austin PD seek search warrants for pot smokers? They'd have time to do nothing else if that were a common practice. It's worth mentioning they found less than a gram of pot, combined, scattered across three different locations in the house. Not exactly a kingpin, this fellow. Was this worth ruining the guy's life over - making him lose his job, trouncing him in the media? Who, if anyone, benefits?

One doubts Grayson's students would say they're better off for his arrest. One former student commented on the KXAN site, "I remember Ian Grayson from when I went to Austin High because he gave me a hug on my last day there." Another student declared, "Gotta love how they fire the best history teacher at our school because of something so stupid as possession. I guess an illegal plant takes more priority over a good education."

Whaddya think? Should police be executing search warrants in private homes for petty pot violations? Was AISD right to put the fellow on administrative leave or should he be reinstated?

Voters and the press should demand all Austin mayoral and city council candidates address this question as we approach city elections in May. Notably, in recent years Austin PD has placed increasingly greater emphasis on marijuana enforcement, with the number of new pot cases increasing 69% from 2007 to 2010. One wonders, for what purpose? Does that really reflect the priorities City Council expects APD to be focused on?

MORE (4/26).

Forensic commission will investigate Austin PD drylabbing allegations

Yesterday Grits offered up an account of the investigative panel on the El Paso crime lab at the Forensic Science Commission, and I chose that subject in part because Chuck Lindell at the Austin Statesman was there to cover the other big story of the day: The Commission's decision to open an investigation in response to allegations surrounding the Austin crime lab. (There appeared to be no MSM reporters, even from the El Paso Times, at the 7 a.m. investigative panel.) Reported Lindell ("State panel opens inquiry into Austin police crime lab," April 14):

The Texas Forensic Science Commission voted unanimously Friday to open an investigation into two complaints about the Austin Police Department crime lab's testing of drug evidence.

A three-member subcommittee will lead the investigation — holding meetings that will be open to the public — and report its findings to the full commission, which will conclude the case with a written determination.

The state commission, which investigates allegations of negligence or misconduct involving forensic labs, set no deadlines during Friday's meeting in Austin.

One complaint against the Austin police crime lab was filed by another facility, Integrated Forensic Laboratories in Euless, which questioned testing results or procedures used on evidence in three cases in which it followed up on work by the Austin lab. ...

The second complaint was filed by Debra Stephens, a scientist who worked for several years at the Austin crime lab until she was fired last year.

Lindell goes on to give topline accounts of the specific complaints being investigated, but the most interesting to me were allegations of "drylabbing" preliminary reports. The Austin PD crime lab told the Commission that retesting in one case out of the 23 identified by Ms. Stephens found a substance originally reported that was not there on retesting, but said it didn't affect the outcome of the case. The Commission will have to get to the bottom of that dispute. Stephens told Lindell otuside the meeting that the error "led to a charge being dropped." "I'd call that impacting the outcome of the case," she told him, alluding to discussions over the Commission's narrow definitions of negligence and misconduct.

One tidbit Chuck mentions only in passing deserves more explication. It came out in the discussion that, during the period under review, Austin crime lab workers would simply record results on scraps of paper - often sticky notes - then throw the only original documentation away after performing a test, merely entering the results into the computer system. In one instance, documentation provided by Ms. Stephens showed lab tests continued to be run six minutes after a preliminary report was issued to law enforcement. According to DPS, the practice did not meet ASCLD/LAB standards (they cited the specific regs, but I didn't jot them down), and APD said it changed protocols to eliminate the practice of issuing preliminary reports. They now require testing to be completed before reports are issued, though you'd kinda think that should have been obvious in the first place.

Another interesting allegation against APD came from a private crime lab in Tarrant County (the same one whose director is serving half-time overseeing the El Paso lab) involving whether to classify a substance as "marijuana" or as "THC" found in a substance "other than" marijuana, which receives a higher penalty. A rep from the Austin Bexar County crime lab was unhappy this allegation had been brought, declaring emphatically that the FSC wasn't the right place for resolving disputes between lab interpretations. But with so many other allegations bundled up in the same batch, his pleas not to examine the lab's practices on that score fell on deaf ears. It's possible, commissioners said, it could be a legal instead of a scientific dispute, but they couldn't make that judgment without digging into it further.

Obviously, Grits will continue to track this subject as the FSC inquiry moves along.

East Austin needs more family-centered approach to crime than touted by neighborhood groups

A story yesterday in the Austin Statesman ("East Austin neighborhoods want downtown-style safety measures," March 31) voiced proposals from neighborhood associations near Grits' own residence in central east Austin aiming to crack down on repeat offenders in the same manner as an aggressive campaign against repeat offenders downtown. As often happens, tragedy heightened the rhetoric and political urgency of activist critiques. The article opened:

A fatal shooting this month at 13th and Chicon streets has riled several neighborhood association leaders, who say they want to see certain downtown public safety measures expanded to central East Austin, where a struggle to stop prostitution and drug activity has continued for decades.

Police and officials with the Travis County district attorney's office said an initiative is in the works to curb crime in the area, which is notorious for outdoor sales of narcotics at all hours of the day. But they declined to discuss specifics.

For many residents, the most significant challenge is putting away the dealers who keep coming back to the streets even after multiple arrests.

"Prosecution is the problem," said Lee Sherman, president of the Kealing Neighborhood Association, which is bordered by 12th Street, Chicon Street, Rosewood Avenue and Comal Street.

He and members of at least four nearby neighborhood organizations said that for months they have been pushing Austin police and district attorney officials to create an enhanced prosecution program in central East Austin similar to the one in the downtown entertainment district that targets repeat offenders and other violators.

But neighborhood efforts have been to little avail, Sherman said.

"We have been actively seeking these changes for years and years and years, and this is an example of what happens when they are not applied," Sherman said of the latest killing near his home. "If any area needs these tools, ours does. I don't understand how our area keeps getting left out of these types of programs."

District Attorney Rosemary Lehmberg said they are "just in the planning stages" of creating an action plan in central East Austin.

"It might not look exactly like the downtown initiative," she said. "It has to be tailored to the needs of the area and what the crime statistics show us, but we will absolutely include the neighborhoods in the conversation."

The euphemism "enhanced prosecution" means in practice that "district attorney officials comb through reports filed by Austin police officers patrolling that zone and look for cases that qualify for tougher punishment," according to the Statesman.

Grits for one is glad to see the DA isn't automatically acquiescing to neighborhood groups on this because transplanting hyper-punitive strategies from the Central Business District to east Austin would be a terrible idea. I've lived just a few blocks away from the area suggested for expanded enforcement for the past 22 years and have had a front-row seat witnessing many of the cited problems. IMO just jacking up enhancements and sentences after the fact exacerbates the underlying, crime-causing dynamic. Why not seek out approaches for intervention - like the "High Point" or "drug-market intervention" (DMI) model (see a manual [pdf] on the idea from the USDOJ) - rather than a straight-up crack down? After all, how many different public officials over the years have announced their own version of "zero tolerance" initiatives in the area? (The "drug free zone" signs in the area for years have been viewed by the neighborhood as a source of ironic humor.) Central east Austin has one of the highest ratios in the city of children with incarcerated parents. Cracking down is a big part of how this neighborhood got where it is today. The High-Point approach is more family and neighborhood based, involving engaging the family and community leadership in keeping a young person out of "the life," using the threat of immediate prosecution as a strong, immediate motivator. Here's a good summary of the process in micro from The Economist:

POLICE watched seven people sell drugs in Marshall Courts and Seven Oaks, two districts in south-eastern Newport News, in Virginia. They built strong cases against them. They shared that information with prosecutors. But then the police did something unusual: they sent the seven letters inviting them to police headquarters for a talk, promising that if they came they would not be arrested. Three came, and when they did they met not only police and prosecutors, but also family members, people from their communities, pastors from local churches and representatives from social-service agencies. Their neighbours and relatives told them that dealing drugs was hurting their families and communities. The police showed them the information they had gathered, and they offered the seven a choice: deal again, and we will prosecute you. Stop, and these people will help you turn your lives around.

The drug dealing that underlies much east Austin street crime is not of the high-end variety but instead mostly operates at the subsistence level, where a minimum wage job would generally be quite competitive if they were available. As Stephen Leavitt famously demonstrated in Freakonomics, drug dealing doesn't pay much and most drug dealers live with their parents  (an observation that applies in spades to central east Austin, in this writer's observation). So the High Point model has great potential if it successfully engages, parents, grandparents, pastors, and other who are influential in young people's lives. The DA's Office still has the option to prosecute if somebody continues to commit crimes (as some inevitably will), but the approach has a good track record and seems more tailored to the particular needs of central east Austin than merely enhanced sentences for young offenders.

Public intoxication, hypothetical harms, and 'contempt of badge'

The Austin Statesman today published a story ("Public intoxication laws too fuzzy, critics say," March 27) questioning Austin PD's alleged use of public intoxication charges as "contempt of badge" and detailing the loosey goosey standards under which the law is enforced. "I can't believe the haphazardness with which they're arresting people for public intoxication," former DA candidate Mindy Montford told the paper. "You'd be hard-pressed in the penal code to find another crime as subjective as this one."

Montford said most offenses in the Texas penal code include some stipulations about a suspect's mental state, such as whether they acted recklessly or intentionally. They also put the burden of proving the offense's veracity on prosecutors.

But the public intoxication charge has none of this, Montford said, especially when compared with the state's laws against driving while intoxicated. "When you compare the two, the amount of evidence that goes into a DWI" is massive, she said, such as a field sobriety test and breath or blood alcohol tests. "There's none that goes into P.I."

Attorney David Gonzalez said he has represented college students who drove to the entertainment district downtown, had some drinks, decided it was best not to drive and then were arrested for public intoxication while walking home.

Gonzalez said the public intoxication charge is "the only law on the books that allows hypotheticals."

"Hypothetically, they could trip and fall down, so they're a danger to themselves or others," he said. In all other crimes, from theft to murder, a criminal act has to have been committed to justify a charge, he said.

While public intoxication is only a class C misdemeanor, meaning it is punishable by a fine not to exceed $500, it is also an arrestable offense and one that could cause problems at job interviews and other situations, attorneys said.

The offense accounts for a significant number of arrests for a Class C misdemeanor. "Austin police made about 5,600 public intoxication arrests last year, according to data obtained by the American-Statesman through an Texas Public Information Act request. In the past five years, the department has typically made between 5,500 and 6,000 arrests annually, except in 2009 when that number rose to 6,730 arrests, according to the data."

Reduction in federal pork one cause of reduced Texas traffic tickets

A commenter on the last Grits post suggested that a key reason the number of traffic tickets written by Texas police went down last year in Austin and elsewhere may have been cuts to the "Selective Traffic Enforcement Program" (STEP), which are federal pass-through grants distributed to law enforcement through the Texas Department of Transportation to pay for overtime devoted to traffic enforcement. And indeed, that may partially, but not fully, explain the recent decline in traffic tickets written by Texas police.

Searching around on TXDOT's website, I found this memo to law enforcement agencies (pdf) from April 2011 detailing 30% cuts to STEP grants - from $20.2 million to $14.2 million statewide - with a table at the end showing how much each department's grants were cut.

Houston, which has seen its number of traffic tickets decline, lost $360,000 with the reduction in STEP grant funds; Dallas' grant fell by a like amount. The Department of Public Safety took the biggest hit with a $424,521 reduction.

Austin lost about $158,000 in grant funding for overtime with that 30% reduction - not chump change, but not remotely enough to account for the 26% reduction in tickets they recorded in 2011. Austin PD says it wrote fewer tickets because of a policy change - "because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183" - which seems like a more plausible explanation.

Plus, data from the Office of Court Administration showing a statewide decline in tickets processed in municipal court covered the state fiscal year from September to August, so cuts that took effect April 29 wouldn't have impacted most of that year. In other words, there are indications the decline in ticketing a) predated cuts to STEP grants and b) are too large to be completely explained  by them. That's certainly one of several contributing factors, though, and perhaps reason to think the trend might continue in the near term without local traffic enforcement getting artificially pumped up through federal pork.

See related Grits posts:

• Austin police gave 26% fewer traffic tickets in 2011
• Most larger Texas police departments wrote fewer traffic tickets in 2011
• Why are Texas cops writing fewer traffic tickets?

Austin police gave 26% fewer traffic tickets in 2011

It turns out Austin's decline in the number of traffic tickets given out last year was even greater than Grits had supposed according to the city's recent racial profiling report (pdf), which I noticed via this story by Patrick George in the Austin Statesman. Grits has earlier reported that tickets processed in municipal court in Austin had declined from roughly 233,000 to 205,000 from 2010 to 2011 - part of a statewide trend.

The racial profiling report shows Austin officers last year gave far fewer tickets last year. "Austin police officers made 179,882 motor vehicle stops in 2011 compared to 232,848 in 2010," according to the city's racial profiling report. One caveat: That's comparing calendar year to calendar year whereas the Office of Court Administration is measuring the fiscal year (September to August).

Still, that's an amazing 26% fewer tickets from year to year! Said the report: "Overall, the number of stops is lower in 2011, in part, because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183. As a consequence, the number of traffic citations declined from 224,662 in 2010 to 165,757 in 2011, a 26% reduction. The overall number of motor vehicle stops also decreased by 23%." That has trickle down effects at the jail and throughout the court system because so many arrests originate at traffic stops.

Austin also saw the number of consent searches at traffic stops decline last year, from the highest total since they began tracking in 2010 (19,519) to a more modest 2011 total (11,719)), for a 40% drop.

I went to check the same data source for other cities and was disappointed to see this on the TCLEOSE website: "Note: The link to the 2010 Racial Profiling reports from the TCLEOSE website is no longer available on-line, but may be purchased for $35 (CD disk) through Open Records Request." That's pointless. How much space does it take to archive past years' reports for comparison? I might go ahead and get a couple of years worth for comparison purposes, but that's gratuitous. At least leave the last 3-5 years of reports online to supply some context for the annual data.

• Most larger Texas police departments wrote fewer traffic tickets in 2011
• Why are Texas cops writing fewer traffic tickets?

Pedestrian deaths in Austin and the trouble with drawing conclusions from small numbers

One seldom-discussed drawback with data-driven policing - particularly when its used in mid-size and smaller cities - is that small statistical samples often make drawing valid inferences problematic, and here's a good example: Writes reporter Brenda Bell, "auto-pedestrian deaths are up in Austin, even as deaths from other vehicular collisions are falling. Last year marked an 83 percent increase in pedestrian-bicyclist fatalities; there were 22, compared with a dozen in 2010." Bell reported Sunday that "This year, eight people, including one walking his bike, have already died in collisions with motor vehicles. All but one happened after dark or at dusk. One-third were hit-and-runs."

While certainly it's accurate to say there was an 83% one-year increase, when the numbers are so small that means very little as far as identifying a statistical trend of increasing deaths, and the story didn't include prior years' data. On Sunday Bell did report that "Auto-bike fatalities have averaged one per year over the past seven years," but that means the year you have two it's a hundred percent increase. Is that meaningful data, or just random fluctuation? You see the same issues with murder trends and other infrequent events. Media will report a one-year increase with tremendous drama as a possible trend, even during periods like we're in now when long-term murder rates are declining. When numbers are so small, you need multiple years of data to perform a probative trend analysis, which of course doesn't make for the most attention-grabbing news story.

Perhaps the most obvious death-causing trend evidenced in the stories is that a significant proportion of pedestrian deaths in Austin happen along Interstate 35, which for significant stretches (especially north of 51st Street) is difficult to cross legally on foot and is flanked by extremely busy frontage roads. This datapoint reinforces my sense that jaywalking can be better addressed via traffic engineering solutions that make it safer for pedestrians to get where they're going. If you're walking any significant distance along the access road on I-35, it's likely because you have no other choice.

Another notable trend mentioned is bicyclists being hit after dark, which might argue for efforts narrowly aimed at improving safety equipment. (I see cyclists these days with flashing lights on their bikes instead of reflectors that make them MUCH easier to see after dark.) Cyclists' deficient equipment can be addressed with a variety of tactics from public education, warnings or tickets for equipment violations, improved lighting for dangerous intersections and popular bike routes, etc..

For the most part, though, the city should address these mainly as traffic engineering questions as opposed to law-enforcement concerns. For example, would auto-pedestrian/bike accidents downtown be reduced by creating the proposed Nueces Bike Boulevard? (See here [pdf] for more detail.) Quite possibly. A fascinating and telling map of recent auto-pedestrian/bike accidents accompanying the story shows a large number downtown, though some are concentrated on the east and west entry corridors. Those wouldn't be affected by a north-south route on Nueces, which more aims to reduce accidents on, say, Congress and Lamar.

Instead, Austin PD took a one-size-fits-all enforcement approach, employing a hammer in lieu of a scalpel. In a highly unpopular two-week crackdown last October:

Pedestrians got 1,336 citations and warnings, for offenses such as failure to observe traffic signals, panhandling or stepping into roadways midblock. Drivers got 174.

That lopsided scorecard is par for the course. Between 2008 and 2010, Austin police issued nearly 11,000 citations for violations of auto-pedestrian laws; only 7 percent went to drivers.

Ticketing cyclists may prompt them to get better equipment for biking at night - just handing out lights might even be better - but jaywalking will always be a function of convenience and opportunism. Focusing significant resources on ticketing them IMO is just silly. Meanwhile, as for Austin's much-ballyhooed "3 foot rule" that's supposed to protect "vulnerable" road users?

A city ordinance passed in 2009 requires vehicles to keep at least 3 feet away when passing a "vulnerable user" — a bicyclist, motorcyclist, pedestrian or runner. On four-lane roads, motorists are supposed to yield the lane entirely.

Austin police have issued just eight citations — four per year — under that law.

So that was a bust. Now they're going to try using police as pedestrian "decoys" to ticket motorists. But with 11,000 citations for auto-pedestiran laws over three years and a supposed increase in the problem just now, it doesn't seem like the enforcement-only approach gets to the heart of the problem. Assessing tickets and fines for petty offenses while telling the public it's for their own protection comes off as self serving as it is patronizing in an era when municipal tickets are viewed as a lucrative revenue source.

To be fair, the city does have $13.5 million in bond money available "for projects to enhance mobility and safety for pedestrians, bikers and disabled people," which should do a lot more to prevent deaths than giving pointless tickets to jaywalkers. Certainly it will do more than APD's various proposals for new city bonds at ten times the cost.

Police Chief Art Acevedo told the paper he thinks this trend - which nobody can really say is a trend yet - results from the declining moral character of the citizenry: "Drivers think (pedestrians) don't have the right to cross the street, and pedestrians think they can jump out at the last second," he said. "It used to be ... that when a pedestrian set foot in an intersection, that people stopped. I think it's a commentary on society that we've lost that respect," adding that we're all a bunch of drunks Austin is "one of the heaviest drinking cities in the country."

For Grits' part, I think it's a commentary on Austin PD that, although the chief and the union complain constantly they don't have enough uniformed officers, when they get them they want them deployed ticketing jaywalkers while the civilian APD crime-scene unit doesn't even investigate a majority of burglaries for lack of manpower. And it's perhaps a commentary on the local media that police pronouncements of an "increased rate of pedestrian fatalities on Austin streets" are accepted as valid based on such a limited dataset. (If earlier years' numbers of pedestrian deaths are higher than 12, it might almost seem like the data was cherrypicked.)

These two stories give us insight into Austin PDs traffic enforcement tactics but in many ways for Grits raise more questions than they answer. Once we've seen the number of pedestrian deaths by year, preferably per capita, over a longer period of time, perhaps it would be safer to draw conclusions about trends.

News flash: Cop calls Grits a liar

Grits is a liar, says Austin Police Chief Art Acevedo! Go here to read why then come back here for, as Paul Harvey used to say, the rest of the story.

Let's start by quickly granting what was incorrect  in my original post about getting stopped twice Friday night a week ago with my granddaughter on the way home from roller skating (an account which received, much to my surprise and without my assistance, an almost absurd amount of social media attention until eventually the Statesman picked it up). Throughout, with the chief's approbation, I declined comment.

Basically two things I wrote were flat-out wrong, both of which are detailed in an Update/Correction posted at the end of the original item on Friday. First, I recalled an officer pulling his taser out when in fact his hand hovered over his weapon but it remained holstered. After I finally got to see some of the video for myself, I posted a correction. I also posted another correction: I originally thought the deputy constable (the first officer who detained us) had called in the rest of the cavalry and assigned blame to her when I shouldn't. Turns out, she did the right thing and IMO it was APD who overreacted, an opinion which explains why the chief is mad.

What's still in dispute? Mostly red herrings. I never alleged police brutality nor misconduct. In fact, in the comment section and more than a few emails to reporters I insisted there was none. I did say in the post I was "roughly cuffed." And if the tape rolls long enough (I don't know what was released to the media) at some point I asked them to loosen the cuffs as they were cinched up tight enough to be painful - a small thing, perhaps, if it's not you, but a "lie"? To his credit, one of the officers loosened the cuffs shortly before I was released.

Acevedo also pretends in the Statesman article that his officers stopped us because I refused to identify myself to the deputy constable. In fact, the deputy constable's written report, which the chief let me read in his office but would not give me a copy of, she said she stopped us, asked Ty a few questions, seemingly did not think the situation required further investigation and had begun to return to the Millenium Center. It was then that APD was told a deputy constable was on the scene, and they had her patched through via dispatch. Moments before APD was about to roll up on us, the deputy constable told APD that she'd spoken to us, gave them the child's name, told them I was her grandfather, and began to run toward the scene. She never told APD I did not identify myself before I was handcuffed, so that fact-bite was irrelevant. (Judging from the one-sided account, Acevedo apparently did not release the constable's written report, nor the dispatch tape of her saying that to APD along with the materials he gave the Statesman Friday.)

What aspects of my original recitation were correct? Well, basically everything else. Despite Acevedo's inflammatory attack on my credibility, not much is actually in dispute. Someone called 911 when I left the Millennium Center with my granddaughter. I was stopped not once but twice. I did, in fact, allow the Constable to question Ty and she left understanding that I was Ty's grandpa. We were then stopped by several APD officers. I counted six cars initially, with three more arriving soon thereafter and a supervisor arriving later. Acevedo didn't dispute any of that. I was handcuffed. Ty was taken away from me, pulled into a police car and questioned. We were not immediately released. Some minutes later, after they finally called my wife and daughter, we were let go without an apology. And the child had numerous questions and opinions about the incidents that I tried to accurately recollect.

So, on the basis of one factual error which I readily owned after seeing the conflicting video, I am a liar, says the chief. The strangest part is, Acevedo brought me into APD headquarters Thursday afternoon to meet with him and his staff, proposing that we do a media interview together and try and make all this a "teaching moment" for the public (his words). He was upset that the issue was being discussed without him getting to "frame" it. I'd turned down more than two-dozen requests for media interviews on this topic, from every local print and TV outlet to Anderson Cooper, but because the media frenzy had gotten so out of hand even without my participation, after mulling it over with the family, I agreed to do a joint interview with him (now decidedly not happening).

My first hint that Acevedo was about to show me an especially Janus-faced visage came Friday afternoon, when he began leaking emails and launching personal attacks on a local listserv through his favorite stalking horse, retired Texas Monthly publisher Mike Levy. Then Saturday in the paper he's calling me a liar. "Teaching moment" my ass.

It would be convenient for him if I were. Grits has been a bit of a thorn in the department's side dating to the mid-'90s when I co-founded a political action committee that successfully pushed for the creation of Austin's Police Monitor Office and ran a website publishing police misconduct reports from the department garnered under open records. So taking this opportunity to try and discredit me personally must have been just too tempting to pass up.

Did I intentionally make up the drawn taser? Of course not, no more than a witness who falsely identifies a suspect by mistake. In 2001, I helped pass the legislation to require cameras in police cars, for heaven's sake, I knew full well the incident was being taped! I said what I remembered and remembered that detail wrong. Vision and memory is not the same as a videotape. Anyone who follows innocence issues knows much of our vision of constructed from memory and witnesses make mistakes. Carl Reynolds from the Office of Court Administration once recounted how, after he and several others were accosted in a robbery in Atlanta, he "learned later that [he and his] colleagues ... did not even agree on the number of young men." Were some of them lying? I don't think so. Neither was I, and I'm man enough to admit I was wrong. Hence the correction.

Similarly, I was wrong to assume the deputy constable called in the cavalry. With 20/20 hindsight, having reviewed all the materials the chief showed me (which is more than the press has seen so far), she's the one who did it right, investigating a serious allegation without needlessly scaring a child or applying more restrictive force than was necessary to contain the situation. She also told APD moments before they detained me that she'd spoken to the child, gave them her name, and said I was her Grandpa. My apologies for my original, false interpretation, both to the deputy and Constable Danny Thomas' shop.

Many, many people have asked whether I will sue or file a complaint, so let me reiterate here, just as I said in the blog comments and in writing to Chief Acevedo and Ms. Osborn (though somehow she didn't find it fit to print): "Not only am I not going to sue the police, I doubt anyone even violated APD policies so a complaint wouldn't do much either - they're TRAINED to respond like that, which is my main beef with what happened. This wasn't a bug in the system, it's a feature."

As I said in Grits comments and to the Chief, both face to face in front of a roomful of brass and in writing, I don't believe what those officers did violated any law, departmental policy or court ruling, and in fact it likely conformed to APD's training and the expectations of their supervisors. I never said otherwise. It was completely "by the book." But there are some really good books that may not be completely appropriate for a five-year old. I'm not saying don't investigate, I'm saying exercise some self-restraint, discretion and common sense, like the deputy did. When your investigation is happening in front of a small child and there's no immediate threat, I prefer the deputy constable's book to APD's approach. That's the full extent of any policy criticism I have on the incident.

What bugs me most about the Statesman article wasn't some cop calling me a liar - that happens twice a week if you read Grits comments. No, what gets my goat is the chief spent nearly two hours glad handing me on Thursday and never once called me a liar, never once alleged bad faith, said he wanted us to move forward to respond together, blah, blah, blah. Then the next day he ropes in some in-the-can Statesman reporter, dripping out partial information to do a hatchet piece.

There are many types of courage in the world. The kind of courage to confront criminals on the street is certainly one type. Then there's the courage required to admit a mistake. And there's having the grit to look a man in the eye and say the same things to his face that you do behind his back. Or perhaps that last one has become an outdated virtue?

RELATED: Just so Grits can say they've been published as prominently as the original post, here are the two corrections I appended to the original blog post on Friday:

UPDATE/CORRECTIONS (2/17): Yesterday afternoon I had the opportunity to review the documentation, video, audio and police reports related to this incident in Art Acevedo's office and heard his pitch why this blog post was unfair. There are really only two corrections I'd make having now seen the videos and other documentation Chief Acevedo showed me yesterday. (I'm probably going to write about it again over the weekend.) First, I recollected in the blog post that an officer had a taser drawn and from the video the officer's arm was only crooked and prepared to draw. It happened in a flash and like many eyewitnesses, when under a perceived threat, my mind filled in some pieces erroneously, I'll be the first to admit in light of the video evidence. It was not an intentional error. That said, I correctly perceived that all of a sudden a LOT of cops were on us out of nowhere and if I'd made any sudden or untoward moves I'd be tazed or worse. I think it wasn't unreasonable for either of us to feel threatened by them rolling up on us like that.

The other error was that the original post cast unfair blame on the deputy constable. Her report said that after we'd spoken, she was heading back to the Millenium Center thinking the incident was over when the dispatcher patched into the constable's frequency because they'd heard from the Millenium Center she'd gone after us. In the dispatcher's audio, she tells APD just before they roll up on us that she'd spoken to us, gave them Ty's name and told them I was her grandpa. Though I blamed her (unfairly) both at the scene and in the initial post, falsely thinking she'd called in the cavalry, she did not. In fact, in the scheme of things she got it right. Basically two departments with overlapping jurisdictions responded to this complaint: One came at us based on a community policing approach where she walked up calmly, asked a few questions, and according to her report was satisfied and had begun to return to her shift until she heard on the radio APD was coming. By contrast, APD handcuffed first and asked questions later. That's the big difference between the two departments' approaches.

More allegations against APD crime lab

The Austin PD crime lab may be getting more scrutiny from the Forensic Science Commission, reports Patrick George at the Austin Statesman, this time based on a rare complaint from another lab which is challenging APD's drug testing results:

Another complaint has been filed against the Austin Police Department's crime lab, this time by an independent lab in North Texas that claims it received different results than the Austin lab when testing the same drug evidence.

Crime lab officials in Austin said they received the complaint filed by Integrated Forensic Laboratories in Euless, between Dallas and Fort Worth, late last week.

Austin police and lab officials have begun looking at the complaint this week and are preparing a response, said Bill Gibbens, the lab's forensic manager. Gibbens said he hopes to send a response to the Texas Forensic Science Commission by Friday.

It is the second complaint the Austin lab has faced this year. In January, a former crime lab scientist who was fired last year alleged that lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

Gibbens said the latest complaint deals with two separate pending criminal cases from 2010. Because they are moving through the courts, he said, he could not discuss the details .

After the Austin police lab submitted its drug evidence tests to the courts, the suspects' attorneys asked for a second opinion from the independent lab in Euless, Gibbens said. That lab returned different test results than the Austin lab, he said.

"It's a difference of opinion in how we report substances," Gibbens said.

Gibbens said he's not sure how common it is for one lab to file a complaint on another lab. "It's the first time it's happened to us," he said.

Lynn Robitaille, the general counsel for the Texas Forensic Science Commission, said that it was the first time she had seen one lab file a complaint on another since she started there in December 2010. The commission was created by the state Legislature in 2005.

Robitaille said the commission's complaint screening committee heard the matter Friday. When they meet again in March, they are expected to recommend whether the commission should investigate the matter.

I wonder if the allegations of drylabbing (submitting results without having done the testing) and the incongruous lab results are related? If you submit results without testing the evidence, that would certainly open the door for another lab to come out with different findings.

Me, APD, and 'Babysitting While White,' Part Deux

A few years back Grits posed the question, "Is babysitting while white reasonable suspicion for police questioning?" after my granddaughter and I were detained and questioned at length in my neighborhood on suspicion of some nefarious deed (it was never quite clear what). In that incident, the police were pretty clear I was stopped solely because Ty, like her mother (who came to live with my wife and me when she was a child) is black, while I'm an almost stereotypical looking white Texas redneck. At the time, Grits was amazed that three squad cars were dispatched to question me for walking down the street with a child of a different race, detaining me for no good reason and scaring the bejeezus out of then-two-year old Ty.

Last night, though, Ty and I got the full jump-out-boys treatment, making our earlier interaction with Austin PD seem downright quaint. It could only have been more ridiculous if they'd actually arrested me, which for a while there didn't seem out of the question. (This is a personal tale much more than a policy analysis, so if you're only interested in the latter, don't bother to read further.)

Our story began at the Millennium Youth Center in central east Austin, which is a city-owned rec center just a few blocks from my home of 22 years. Ty, age 5, often spends the night with us on Fridays to give Mom and Dad a night off, and we'd taken her there to go roller skating after dinner out as a reward for a week's worth of excellent behavior scores in kindergarten.

Perhaps at 7:40 p.m. or so, after she'd had her fill of skating (if the event were put to music, the appropriate theme song would have been "Slip Slidin' Away"), I asked Ty if she'd like to walk home and let Grandma take the car. It was cool but pleasant out, and we were just a short distance from the house, with a city-bike path where we often walk dogs together taking us most of the way there. She was elated: This sounded like a big adventure, and within moments she was bouncing off the walls with excitement, making me think a walk home was just the thing to burn off some energy before bed time.

This was a terrible mistake on Grandpa's part. Not because we live in a relatively rough neighborhood. I know many of my neighbors, saints and scoundrels alike, and I did not and do not fear becoming a crime victim walking that route, even with a five year old in tow. No, apparently the only folks Ty and I had to fear were in uniform.

Our interaction with law enforcement began after we left the Millennium Center on foot, with the giddy five year old racing ahead and me trotting along behind admonishing her to stay out of the parking lot and stop when she gets to the sidewalk, don't run into the street, etc.. She was in a good mood, obeyed, and we held hands crossing the street and as we walked down the bike path toward Boggy Creek and back home.

Then behind us I heard someone call out, though I couldn't make out what was said. We stopped to look back, and there was a dark silhouette crossing the street who Ty thought was calling out to us. We waited, but then the silhouetted figure stopped, crouched down for a moment, then took a few steps back toward the rec center, appearing to speak to someone there. I shrugged it off and we walked on, but in a moment the figure began walking down the path toward us again, calling out when she was about 150 feet away. We stopped and waited. It was a brown-suited deputy constable, apparently out of breath from the short walk.

She told me to take my hand out of my pocket and to step away from Ty, declaring that someone had seen a white man chasing a black girl and reported a possible kidnapping. Then she began asking the five-year old about me. The last time this happened, Ty was barely two, and I wasn't about to let police question her. This time, though, at least initially, I decided to let her answer. "Do you know this man?" the deputy asked. "Yes," Ty mumbled shyly, "he's my Grandpa." The deputy couldn't understand her (though I did) and moved closer, hovering over the child slightly, repeating the question. Ty mumbled the same response, this time louder, but muffled through a burgeoning sob that threatened to break out in lieu of an answer.

The deputy still didn't understand her: "What did you say?" she repeated. "He's my Grandpa!," Ty finally blurted, sharply and clearly, then rushed back over to me and grabbed hold of my leg. "Okay," said the deputy, relaxing, acknowledging the child probably wasn't being held against her will. (As we were talking, a car pulled up behind her on the bike path with its brights on - I couldn't tell what agency it was with) Then she pulled out her pad and paper and asked "Can I get your name, sir, just for my report?" I told her I'd prefer not to answer any questions and would like to leave, if we were free to go, so I could get the child to bed. She looked skeptical but nodded and Ty and I turned tail and walked toward home.

Ty was angrier about this, even, than I was. "Why is it," she demanded a few steps down the path, stomping her feet and swinging her little arms as she said it, "that the police won't ever believe you're my Grandpa?" (Our earlier run in had clearly made an impression, though she hadn't mentioned it in ages.) "Why do you think it is?," I asked, hoping to fend her off with the Socratic method. She paused, then said sheepishly, "Because you're white?" I grinned at her and said, "That's part of it, for sure. But we don't care about that, do we?" "No," she said sternly as we walked across the bridge spanning Boggy Creek just south of 12th Street, "but the police should leave you alone. It's not right that they want to arrest you for being my Grandpa." More prescient words were never spoken.

Just as Ty uttered those words, I made her hold my hand so we could trot across 12th Street amidst the sporadic, Friday night traffic, waiting for a police car to pass before heading across just west of the railroad tracks. Literally my intentions were - the moment we made it safely across the street - to resume our conversation to explain to Ty that nobody wanted to arrest me for being her Grandpa, that that wasn't against the law, and that the deputy had only stopped us to make sure Ty was safe. But we never got a chance to have that conversation.

As soon as we crossed the street, just two blocks from my house as the crow flies, the police car that just passed us hit its lights and wheeled around, with five others appearing almost immediately, all with lights flashing. The officers got out with tasers drawn demanding I raise my hands and step away from the child. I complied, and they roughly cuffed me, jerking my arms up behind me needlessly. Meanwhile, Ty edged up the hill away from the officers, crying. One of them called out in a comforting tone that they weren't there to hurt her, but another officer blew up any good will that might have garnered by brusquely snatching her up and scuttling her off to the back seat of one of the police cars. (By this time more cars had joined them; they maxxed out at 9 or 10 police vehicles.)

I gave them the phone numbers they needed to confirm who Ty was and that she was supposed to be with me (and not in the back of their police car), but for quite a while nobody seemed too interested in verifying my "story." One officer wanted to lecture me endlessly about how they were just doing their job, as if the innocent person handcuffed on the side of the road cares about such excuses. I asked why he hadn't made any calls yet, and he interrupted his lecture to say "we've only been here two minutes, give us time" (actually it'd been longer than that). "Maybe so," I replied, sitting on the concrete in handcuffs, "but there are nine of y'all milling about doing nothing by my count so between you you've had 18 minutes for somebody to get on the damn phone by now so y'all can figure out you screwed up." Admittedly, this did not go over well. I could tell I was too pissed off to say anything constructive and silently vowed to keep mum from then on.

As all this was happening, the deputy constable who'd questioned us before walked up to the scene and began conversing with some of the officers. She kept looking over at me nervously as I stood 20 feet or so away in handcuffs, averting her gaze whenever our eyes risked meeting. It seemed pretty clear she was the one who called in the cavalry, and it was equally clear she understood she was in the wrong.

A supervisor arrived and began floating around among the milling officers (I have no idea what function most of those cops thought they were fulfilling). Finally, she sidled up to repeat the same lecture I'd heard from the young pup officer who'd handcuffed me: "When we get a call about a possible kidnapping we have to take it very seriously," etc., etc.. By this time, though, I'd lost patience with that schtick. Interrupting her repetitive monologue, I explained that I could care less how they justified what they were doing, and could they please stop explaining themselves, focus on their jobs, and get this over with as soon as possible so Ty and I could go home? She paused as though she wanted to argue, then her shoulders slumped a bit, she half-smiled and replied "Fair enough!," wheeling around and issuing inaudible directions to some of the milling officers, all of whom appeared to continue doing nothing, just as before. Not long after that they released us.

Ty told me later that back in the police car she'd been questioned, not just about me but about her personal life, or as she put it, "all my business": They asked about her school, what she'd been doing that evening, to name all the people in her family, and pressed her to say if I or anyone else had done anything to her. Ty was frustrated, she said later, that they kept repeating the same questions, apparently hoping for different answers. She didn't understand why, after she'd told them who I was, the police didn't just let me go. And when it became clear they wouldn't take her word for it, she began to fear the police would take me away and leave her alone with all those scary cops. (I must admit, for a moment there I felt the same way!) On the upside, said Ty, when they were through questioning her one of the officers let her play with his flashlight, which she considered a high point. Don't you miss life being that simple?

Part of the answer, of course, to Ty's Very Good Question about why I wasn't released when she confirmed my identity is that I was in handcuffs and she was in police custody before anybody asked anyone anything. "Seize first and ask questions later" is better than "shoot first," I suppose, but it's problematic for the same reasons. I found out later police had told my wife and Ty's mom that I'd refused to let them question the child - a patent lie since they'd whisked her away into the back of a police car while I was handcuffed. I wasn't in a position to refuse anything at that point.

How hard would it have been to perform a safety check without running up on me like I'm John Dillinger and scaring the crap out of a five year old? I didn't resist or struggle, but they felt obliged to handcuff me and snatch the kid up for interrogation away from any adult family member. Nine police cars plus the deputy constable all showing up to investigate the heinous crime of "babysitting while white."

Moreover, there was no apology to be had at the end of this charade, to me or to Ty. They interrogated the child but no one tried to comfort her beyond handing her a flashlight to play with. And when it was over, not one of those officers, the supervisor included, thought to take a moment to try to explain to the child what had happened, why they'd behaved that way toward her family, or why they'd treated her grandpa like a criminal. They just opened up the door to the squad car as the cuffs were coming off me and Ty came running back and lept into my arms with such force it almost knocked me down.

After the cuffs were off, I said nothing to the APD cops as I carried the child away toward home. But I did pause when I passed the deputy constable - who still could barely look me in the eye - to say aloud to her, "You knew better. This is on you."

Ty was understandably shaken by the incident, and as we walked home she told me all about her interactions with the officers and peppered me with questions about why this, that, everything happened. She said she tried to be brave because she knew I'd get into trouble if the police didn't believe her (she was right about that!) and she was especially scared when she thought they weren't going to accept her word for it. Poor kid.

As we turned onto the last block home, two of the police cars that had detained us passed by and Ty visibly winced with fear, lunging toward me and wrapping her arms around my leg. I petted and tried to comfort her, but she was pretty disturbed and confused by the whole episode. Luckily, it also left her exhausted so she was out like a light soon after we got home, half an hour past her bedtime. This morning she stated bluntly that she had decided not to think about it - a practice my wife encourages when bad things happen - and it seems to be working. She's her normal happy self, though at the park this afternoon she wanted to pretend we were hiding from kidnappers. But I hated for a five-year old to be subjected to such an experience. I'd like her to view police as people she can trust instead of threats to her and her family, but it's possible I live in the wrong neighborhood for that.

UPDATE/CORRECTIONS (2/17): Yesterday afternoon I had the opportunity to review the documentation, video, audio and police reports related to this incident in Art Acevedo's office and heard his pitch why this blog post was unfair. There are really only two corrections I'd make having now seen the videos and other documentation Chief Acevedo showed me yesterday. (I'm probably going to write about it again over the weekend.) First, I recollected in the blog post that an officer had a taser drawn and from the video the officer's arm was only crooked and prepared to draw. It happened in a flash and like many eyewitnesses, when under a perceived threat, my mind filled in some pieces erroneously, I'll be the first to admit in light of the video evidence. It was not an intentional error. That said, I correctly perceived that all of a sudden a LOT of cops were on us out of nowhere and if I'd made any sudden or untoward moves I'd be tazed or worse. I think it wasn't unreasonable for either of us to feel threatened by them rolling up on us like that.

The other error was that the original post cast unfair blame on the deputy constable. Her report said that after we'd spoken, she was heading back to the Millenium Center thinking the incident was over when the dispatcher patched into the constable's frequency because they'd heard from the Millenium Center she'd gone after us. In the dispatcher's audio, she tells APD just before they roll up on us that she'd spoken to us, gave them Ty's name and told them I was her grandpa. Though I blamed her (unfairly) both at the scene and in the initial post, falsely thinking she'd called in the cavalry, she did not. In fact, in the scheme of things she got it right. Basically two departments with overlapping jurisdictions responded to this complaint: One came at us based on a community policing approach where she walked up calmly, asked a few questions, and according to her report was satisfied and had begun to return to her shift until she heard on the radio APD was coming. By contrast, APD handcuffed first and asked questions later. That's the big difference between the two departments' approaches.

AND MORE: See a followup post here.

Did APD detectives commit felony investigating Morton-Baker cold case?

Police can lie to suspects to get a confession; that is well established law. But what, exactly is a lie?  As it turns out, that was well established law, too, at the time Austin PD officers allegedly crossed the line to hoping Mark Alan Norwood would confess to the murder of Debra Baker. Austin police "doctored" a forensics report to try to get Norwood - now the prime suspect in the Christine Morton murder case for which her husband, Michael was falsely convicted and spent 25 years in prison - to confess to murdering Baker, reports Tony Plohetski this morning in the Austin Statesman ("Austin police use of doctored DNA report in interrogation raises questions," Jan. 29):

As his defense lawyers were working to free Michael Morton from prison because of a wrongful conviction that raised questions of prosecutor misconduct, Austin police doctored a crime lab report to use during the interrogation of a suspect in a related case, the American-Statesman has learned.

Austin police officials and Travis County prosecutors confirmed last week that they are looking into the techniques investigators used as they questioned Mark Alan Norwood during lengthy interviews in September.

The detectives used what Police Chief Art Acevedo called "an investigative prop" when seeking information from Norwood in the 1988 bludgeoning death of Debra Masters Baker in her home.

Officials at the state crime lab told Austin police cold case investigators that DNA tests had linked Norwood to the crime scene, officials said. But investigators did not yet have the written report, so they took a DNA report from a separate case, altered it to indicate it was from the Baker case and showed it to Norwood during the interrogation, officials said. Acevedo said the scientist who conducted the test also had authorized them to share the result.

Norwood didn't confess and has not been charged in Baker's death but remains a suspect, according to Austin police.

Norwood's lawyer and legal experts said they do not think the officers' actions will impede the case because Norwood did not confess, but several raised concerns about whether the detectives' actions may have violated laws on evidence tampering. 

So if cops can lie, what's the problem here? Well, altering documentary evidence goes a bit beyond lying, and is clearly prohibited under not just one but two separate felony statutes. Thus, Chief Acevedo's artful attempt to re-frame the document as "an investigative prop," rather than an actual crime-lab report doctored to suit investigators' needs.

Lying to suspects, while clearly legal, isn't always a great idea and can have its own harsh, unintended consequences. Nobody should know that better than Austin PD, which has a long, inglorious history with false confessions, most famously with Christopher Ochoa's and Richard Danziger's false convictions, not to mention with the botched Yogurt Shop murders investigation, in which details of the crime scene were leaked and police obtained more than 50 false confessions, likely including the men they prosecuted for the crime. APD has a track record of reacting in a frenzy in high-profile cases to put maximum pressure on a suspect. (Witness Chief Acevedo's congratulatory comments to the community after public pressure apparently prompted a suspect's suicide: "I personally want to thank the people of Austin," he said. "We put pressure on this person with that community outpouring.")

Against that backdrop, doctoring lab reports to manipulate suspects strikes Grits as par for the course at APD, and indeed Chief Art Acevedo essentially defends the practice as well as the integrity of the investigators. Plohetski notes that:

Police are generally allowed to deceive suspects during interrogations in an effort to get a confession, but the creation of a false government document to use in such interviews raises legal questions. A March 2010 decision by the Texas Court of Criminal Appeals threw out the confession of a man in San Antonio after a detective obtained the statement by using a falsely created report showing the suspect's fingerprints were on a gun used in a homicide.

Tony might have cited not only the 2010 Court of Criminal Appeals case throwing out a confession when it was obtained with a fabricated document, but also Texas' Penal Code Sec. 37.09, which defines felony evidence tampering, in relevant part, as when someone "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding." Under that provision, evidence tampering is a third degree felony garnering as much as 2-10 years in prison, plus assorted fines, fees, etc..Or prosecutors could potentially apply Sec. 37.10 of the Penal Code, Tampering with a Government Record, which applies a similar penalty to anyone who "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." Allegedly making up a phony lab report for use in an interrogation (one assumes they did it "to affect the course or outcome of the investigation") tracks almost exactly the language of activity made illegal under the Penal Code.

It should be said, these were not rogue detectives but instead the activity in question is apparently routine departmental pattern and practice. Indeed, the detectives in question, reports Plohetski, were ordered by their supervisor to manufacture the document.

The story quotes County Attorney David Escamilla saying he will take any appropriate action, but if these two penal code provisions are indeed the applicable law, one would expect it prosecuted in district court as a felony by DA Rosemary Lehmberg, whose office commendably uncovered the alleged misconduct. However, reports Plohetski, Lehmberg asked Escamilla "to oversee the inquiry because of the assistant district attorney's involvement in the case." (Grits hopes that doesn't mean he'll limit the investigation to misdemeanors; I don't understand why the prosecutor's role explaining the law to APD would require the DA Office's recusal.)

Surely the relevant felony statutes were taught to investigators during their training (if not, you can be sure ignorance of the law, in this case, will be treated by the civil service system as an excuse). Both existed long before the 2010 court ruling, though Chief Acevedo acts in the story like this is something new under the sun that would have changed departmental practices had he known about it. Either way, it's the actual fabrication of the document that may get detectives in trouble (or, IMO more likely, not). If detectives had told Norwood a lie about the report's contents and he believed it, they'd fall well within the realm of legality, whatever one may personally think about the tactics of deception in interrogations. But they allegedly went several steps further.

Whatever excuses Chief Acevedo wants to make for his detectives, the law limits them just like everybody else. And if it turns out detectives were never trained on these longstanding penal code provisions, much less recent court rulings governing Texas interrogations, he and his command staff may need to find a mirror to accurately place blame for Austin PD instructing its detectives to commit felonies in the course of a cold-case homicide investigation.

MORE: See a Statesman editorial on the topic.

Forensic commission reviewing Austin, El Paso crime labs

The Forensic Science Commission directed their complaint screening committee today to consider a new case out of the Austin crime lab, discussed here on Grits, in which a fired analyst claimed that reports were issued without performing the underlying testing. They will decide at a future meeting whether to form an investigative panel based on the Complaint Screening Committee's recommendation. The Commission also questioned why Austin or Travis County officials hadn't forwarded the allegations about "drylabbing," in the industry terminology, at the time they first heard of the complaint. (The City had requested the Department of Public Safety look into the allegations, so they were clearly aware before now and could have notified the FSC.)

In other developments at the FSC, most of their day was spent discussing management shortcomings at the El Paso PD crime lab, were a lab worker who analyzed controlled substances turned out to be unqualified and incompetent. About 7-8 folks were there from El Paso including the District Attorney, an assistant city manager and various crime lab personnel.

Bottom line, while most of the media attention has focused on a single lab worker who couldn't pass basic competency tests, Commissioner Sarah Kerrigan, to the nodding affirmation of her peers, strongly urged that that lab worker not be used as a "scapegoat" to avoid bigger changes. When the El Paso lab began its certification process in 2006, the accrediting body found a list of shortcomings they asked them to fix, and which the lab claimed to have resolved. In 2011, though, when the incompetent lab worker came to light, a new assessment identified virtually all the same problems at the lab, still unresolved, that were cited in 2006.

The biggest problems involved the culture of the lab, which until recently was run by a police sergeant with no scientific background who had ultimate decision making authority, including the authority to resolve conflicts among scientists. The Quality Assurance manager, until recently, was disempowered and couldn't stop work when something went wrong. Indeed, during one period in 2010, two different people both thought they were the official quality manager; one of them was mistaken, but clearly there was a lot of confusion.

At times, very junior staff newly qualified in their field were put in the position of doing technical reviews of others' work and performing other high-level functions that were likely over their head. Kerrigan likened it to someone just getting their drivers license and then being hustled off to race in a Grand Prix.

The lab's internal culture discouraged questioning other examiners: "trust the examiner" was the office philosophy, said Kerrigan, but unfortunately not all of the examiners were trustworthy. Kerrigan mentioned one staffer who at different times came back with positive and negative results from the same sample. At least one false positive has been identified - a case where the test came back negative 44 times and positive once, so the lab reported the result as positive without mentioning the 44 negatives.

Kerrigan said their review of more than 1,400 pages of records and interviews with numerous officials during a site visit had revealed a fundamental lack of scientific leadership at the lab. The lab in particular still cannot find a qualified manager. A recent job search turned up empty, and they're reposting the position on January 23. Another commissioner expressed that it sounded like the lab was staffed by technicians instead of scientists able to engage in independent thinking. Kerrigan noted that lab staff attended training that taught correct practices, but nobody ever connected the dots when they came back to El Paso and things operated in a more rudimentary, less professional way. Another odd red flag: Caseloads at the EPPD crime lab are exceedingly low and it's not clear everyone employed in the controlled substance testing division is really needed. In 2010 they processed 863 cases; in 2011 it was 504. By contrast, a crime lab chief sitting next to me at the meeting said his analysts processed 150-200 samples per month, apiece!

The El Paso crime lab was put on probation last year by the accrediting body, which extended probation in September but finally took them off two days before Christmas. A representative of the accrediting body, though, told commissioners that ending "probation" didn't mean all is well or that El Paso is off the hook. They only have until April 6, he said, to find a qualified lab director and fix the other problems identified by the accrediting agency.

The Department of Public Safety agreed to perform a fairly extensive audit of the EPPD crime lab's controlled substances division within the next 30 days, so there will be more to come on this story.

Off-duty police employment deserves greater vetting

A story from the Austin Statesman published January 5 reminded Grits of a research project I conceived awhile back, but put on the back shelf because of a lack of resources and manpower (Oh, how I miss having interns!). The Statesman story opened:

Federal and local authorities are looking into the off-duty employment of several Austin police officers who were paid cash by a wealthy Mexican man to watch over his daughter while she attends college, the American-Statesman has learned.

Two officers have left the Austin Police Department in the past month since the inquiry started, and others who may have also worked on the private security assignment have been questioned.

Austin Police Chief Art Acevedo confirmed Wednesday that the department recently learned of allegations concerning one officer and "immediately launched criminal and administrative investigations." He declined to describe the nature of the allegations or disclose who alerted the department, citing the ongoing inquiry.

Acevedo also would not say how many officers have since been investigated or questioned.

"Anytime we investigate incidents, you are much better off as an organization to start with a very broad view to ensure that we don't miss anything," Acevedo said.

Sgt. Wayne Vincent, president of the Austin police union, said "less than 10" officers had their duties restricted in recent weeks after the department initially learned about outside employment concerns.

We won't know more about this case until the department releases more detail, but over the years Grits has observed that, when police corruption arises, there is sometimes a nexus of money changing hands surrounding either approved, off-duty employment or separate small businesses owned and operated by officers, who as a group are a remarkably entrepreneurial bunch. You'd be surprised how many veteran police officers have one or more small business registered in their names in addition to their day jobs, including a disproportionate share of officers with significant disciplinary records..

At one point a few years back while I was unemployed for quite a few months on end, your correspondent seriously considered taking up a major research project aimed at exactly these sorts of off-duty employment issues at Austin PD. The idea was to get all the approval forms for off-duty employment under open records for some period  of time, say a year, and to simultaneously take the complete list of Austin police officers and run their names at area courthouses and the Secretary of State to identify all sole proprietorships, business partnerships or Texas corporations registered under their names.

Once you've created a database of businesses owned by officers and those which employ off-duty cops, the larger task becomes systematically vetting the businesses to look for discrepancies, improprieties, litigation, government contracts, shady associations, etc.. It would be a monstrously large undertaking for a force the size of Austin PD - almost worthy of a book-length project - and in the end I decided Grits didn't have the resources to take it on as a one-man show, choosing to focus on other, more attainable priorities.

But I've always thought that the extracurricular moneymaking activities of law enforcement deserve more focused attention because often, when you look closely, as in this case, it can become a point of vulnerability for the department in many, perhaps too many, respects.

Former Austin crime lab scientist says reports issued without testing

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.

High error rates discovered for Austin PD blood tests in DWIs

When the defense had a blood sample in an Austin DWI case retested, a private lab came up with results 20% lower than the Austin PD blood test given on one of the city's "no-refusal" weekends. Reported My Fox Austin:

"My client was arrested on July 4th weekend on a no refusal initiative," said Attorney [and former Forensic Science Commission chairman] Sam Bassett.

Bassett said his client was forced to surrender his blood. The sample was tested at the Austin Police Department's crime lab. The results, in a report 18 days later, revealed the blood alcohol content tested at 0.10, just above the legal limit.

"There's always a question when you are dealing with law enforcement crime labs, in my experience there are errors," said Bassett.

After fighting for 10 months, Bassett finally got a court order to have the blood sample retested. He sent it to the Southwestern Institute of Forensic Sciences in Dallas, an accredited and nationally recognized lab. And weeks later, he said the results were surprising.

"It was very surprising to me that there was such a difference," said Bassett.

The retest showed a problem, APD's analysis was 20 percent different.

The sample tested by the Southwestern Institute of Forensic Sciences now at a .08, right-on the legal limit.

One sample. Two different results. So what happened? Why did APD test higher?

"At least half of the ones that I have seen were performed incorrectly," said [attorney] Ben Florey.

Florey said he's seen this many times before. He says he's had to help a number of clients fight what he calls "bad science".

"They're back logged, and I would imagine that they make mistakes," said Florey.

"That starts to raise issues about the quality of the machinery, whether it's being properly calibrated. Whether the people doing the calibration are qualified to do it," said Attorney Bill Mange.

Another expert contacted by the TV station said the 20% error rate was too high: "'Twenty percent would not be an acceptable discrepancy with in a laboratory that they can evaluate what is right and wrong,' said Toxicology expert Dwain Fuller." Notably, breath specimens in DWI cases are specifically exempted under the authorizing statute for the Texas Forensic Science Commission, but blood tests such as this would seem to fall under the FSC's purview. This might be a good issue for them to take up.

It's worth remembering that Austin PD arrests many more people per capita for DWI than other large Texas jurisdictions and has a much larger percentage of their cases dismissed. This news perhaps supplies another datapoint helping explain that odd but consistent outcome. In the meantime, Austin is considering shifting to a "no refusal" policy on DWI arrests every day instead of only on holidays and other higher-risk weekends.

Grits is surprised to read this story because blood tests have been touted as much more accurate than breathalyzers. But a 20% error rate (on the high side, no less) means it's possible some borderline cases - where the blood test comes back close to the .08 mark - are being falsely charged.

MORE: From Paul Kennedy, "Blood or Breath?"

More risk than reward from Austin PD compiling list of open wifi connections

UPDATE (9/22): I fowarded this post to Austin Police Chief Art Acevedo and, after a brief back and forth via email, this morning he writes to say the department has canceled today's planned "Operation Wardrive." Wrote Acevedo, "I nixed it already, good intentions to educate, but not best for public perception. A very enthusiastic group of folks trying to combat cyber crime came up with the idea without flying it up the flag pole. Please let folks know that there are people that can and will use unsecured home networks for unsavory and illegal activity."

Thanks, Chief, for accepting feedback and acting on it instead of reacting defensively, and for doing so in a timely manner. Perhaps next time the DART unit should run their plans "up the flag pole" before launching dicey mass surveillance schemes without probable cause, if only to save the embarrassment of having to backtrack after announcing plans to the media.

Certainly readers should check to make sure the default password has been changed on their routers and be sure to use a firewall, especially when using open networks outside the home. But average folks needn't be frightened into closing off access to your home wifi by Chicken Little-style scare tactics. As computer security expert Bruce Schneier has written, running an open wifi connection is "basic politeness. Providing internet access to guests is kind of like providing heat and electricity, or a hot cup of tea." Common courtesy should never trigger a police investigation, even under the pretense of a public education project.
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Original post: The Austin PD is undertaking a bizarre scheme called "Operation Wardrive" to "find open wireless internet connections in the city." Reported KVUE-TV, "The APD Digital Analysis Response Team, or DART, will hold "Operation Wardrive" Thursday, Sept. 22.  DART unit members will make contact with residents who have open wireless connections and teach them the importance of securing them."

According to KVUE, "APD says wireless devices will be used to find the open networks. They say most manufacturers of wireless routers ship their devices with the wireless network unsecured by default, which leaves people at risk. They warn that internet users who  fail to secure their network are at risk of someone else using it or hacking into personal information."

This strikes me as a very strange task for police to undertake. Asks one of my techie friends, "Has Austin run out of crime? Do APD officers patrol neighborhoods checking for open windows and doors? (Actually using your neighbor's wifi is more like reading by their porch light.)"

This is less about protection of the public and more about using law enforcement as corporate welfare to enforce terms-of-service agreements with wireless internet providers. But APD is not a party to the contract with my ISP and I fail to understand why it's any of their business if my wifi connection is open or not. Want to educate folks that they need to change the password on their routers? Fine. Purchase advertising. But don't go creating a master list of open wifi connections and start hassling customers who've done nothing wrong.

Which brings us to a big unintended consequence from this ill-considered scheme. Because this activity is not (remotely) part of an actual criminal investigation, the list of open wifi connections APD generates as well as all associated data will be a public record under the Texas Public Information Act. Simply compiling that list - which will be available to anyone as soon as somebody files an open records request and posts the results online - makes the types of malicious activities APD is concerned about more likely, not less. Bad idea.

Even if this is a well-intentioned effort and not just water carrying for the ISPs, I don't think our friends at Austin PD have fully thought this tactic through.

MORE: From EFF-Austin, where advocates published a detailed open records request filed today with APD about "Operation Wardrive."