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

Texas jail populations down 9.5% since 2008, declining faster than nationally

The Sentencing Project issued a press release today on a topic Grits has recently remarked upon: The decline in county jail populations, which have lowered significantly more quickly than prison populations. Says the Sentencing Project:

JAIL POPULATIONS DECLINING MORE RAPIDLY THAN PRISONS

Washington, D.C. - An analysis of new data on jail populations in the U.S. shows that the number of people confined in local jails is declining at a more rapid rate than in state and federal prisons. The Sentencing Project finds that from 2007-2010 the incarceration rate in jails declined by more than three times the rate of prisons, 6.6% compared to 1.8%.

“The sustained decline in both prison and jail populations has produced no adverse effects on public safety,” stated Marc Mauer, Executive Director of The Sentencing Project. “We now have the opportunity to free up resources for public safety initiatives that do not depend on record rates of incarceration.”

The analysis is based on data released today by the Bureau of Justice Statistics (BJS) in its annual report of individuals in jail, Jail Inmates at Midyear 2011. The report shows a decline in the number of inmates for the third consecutive year. In its reports, BJS provides figures for jail populations at midyear and for prison populations at the year’s end. Jails are local facilities that generally house persons awaiting trial or serving short sentences, while prisons are run by state and federal governments to confine persons sentenced to one year or more of incarceration.

The BJS report also documents a sharp 23.4% reduction in the number of juveniles housed in adult jails between 2008-2011. The practice of housing juveniles with adults has come under criticism from a broad range of organizations because of increased exposure to violence and abuse.

The Sentencing Project is a national non-profit organization engaged in research and advocacy on criminal justice policy.

See the DOJ report (pdf), which notes that: "Local jails admitted an estimated 11.8 million persons during the 12 months ending midyear 2011, down from 12.9 million persons admitted during the same period in 2010 and 13.6 million in 2008. The number of persons admitted in 2011 was about 16 times the size of the inmate population (735,601) at midyear 2011."

Surprisingly, the reduction does NOT stem from expanded diversion programs. Nationwide, 62,816 defendants were "supervised outside of a jail facility" at mid-year 2011, down from 72,852 at the same point in 2008.

Inmates held on immigration detainers were one of the few countervailing trends: ICE detainers accounted for 3.3% of local jail inmates in 2011 nationwide, compared to 1.7% in 2005 (the 21st century floor).

Exceeding the national trend, Texas jail populations have reduced 9.5% overall since 2008, according to the Commission on Jail Standards, with Harris and Bexar Counties registering especially significant declines. Grits compiled this data (which includes prisoners housed out of county) from TCJS reports from the last five Aprils:



By arbitrarily picking April as the measuring stick, these data likely understate Texas' true jail population decline since jail populations max out in the summer. According to press reports, e.g., Harris County's jail population topped out at more than 12,000, including out of county inmates.

I'm curious: Why do readers think jail population declines (and smaller reductions in the prison incarceration rate) took so long to materialize after crime began to go down 20 years ago? Does it have more to do with crime trends or how localities are processing cases pretrial (personal bonds, GPS monitoring, etc.)? Are recent reductions sustainable or a mere blip on the radar?

Grits' sense is that these reductions represent just the beginning of what's possible. IMO there's a lot more slack in the system to take up, and a lot more county budget savings to be had from jail population reductions if local officials - particularly those concerned with high taxes - will embrace the meme. 

See related, recent Grits posts:

• Dallas jail population dropping as crime declines
• Harris County crime reduction undeterred by 31% drop in inmates

Big Brother, felony pranks, and rebates for 'murder insurance'

Let's do a roundup post to clear out the mounting, increasingly daunting sea of tabs across my browser that have relentlessly taunted Grits for several days now:

PBS features Kerry Max Cook saga
PBS Frontline has a new feature on Kerry Max Cook, following up on a New York Times story last week by Michael Hall.

Picking grand jurors
This Austin Statesman story gives one of the best descriptions you'll see of the nuts and bolts of how grand juries are selected in Travis County - either by appointed commissioners or from the same jury pool as regular jurors. I prefer the latter, even if the commissioner system generates more "diversity." I don't want prosecutors cherrypicking grand juries - as DA Rosemary Lehmberg said she did in a recent, high-profile case involving a police shooting - based on the grand jurors' skin colors, either to affect the outcome or to pander to public perception.

Big Brother in Big D
According to the Dallas Morning News, tomorrow Dallas Police Chief David "Brown will unveil the latest in crime-fighting technology that, he hopes, will ensure that the city’s crime rate stays permanently on its declining trajectory. The technology consists of monitoring devices such as cameras, license-plate readers for squad cars and tracking equipment" for use in bait cars and other "bait" items. The News editorial focuses on the "bait" strategy, but I'm more concerned about the expansion of cameras with little credible evidence they're cost effective or prevent crime, much less "license plate readers for squad cars," which would amount to a massive data mining project operating in the field with little regulation. The Dallas City Council should reject those two items.

Big Brother meets the Alamo
James Bamford at Wired has a lengthy, must-read story on the domestic intelligence gathering apparatus of the National Security Administration, including a massive campus at Lackland Air Force Base in San Antonio which "Focuses on intercepts from Latin America and, since 9/11, the Middle East and Europe. Some 2,000 workers staff the operation. The NSA recently completed a $100 million renovation on a mega-data center here—a backup storage facility for the Utah Data Center."

Defense can explain 'guilty beyond a reasonable doubt'
The Court of Criminal Appeals recently upheld a pro-defense ruling to say that defense counsel has a right to explain to jurors what "guilty beyond a reasonable doubt means." Good luck with that! In my experience if you get five different lawyers in a room you'll get at least six different opinions on the question. As the judge in the story pointed out, reasonable doubt "is not mathematically quantifiable, but rather is a level of certainty of belief in the minds of each of the jurors."

Counties get 'murder insurance' rebate
The regional capital public defender office in West Texas - what some have dubbed "murder insurance" - refunded $400K to the 77 counties in its jurisdiction, reported the Lubbock Avalanche Journal.

Public interest lawyering recognized
Congrats to the UT Law School's Texas Law Fellowship Public Interest Award recipients. "They are: Ian Spechler, ‘07, founder of the Legal Representation for Dually Managed Youth Project; David Gonzalez, founding partner of a sliding-scale criminal defense firm in Austin; UT Law Clinical Professors Bill Allison and Patricia Cummings of the Criminal Defense Clinic, who are being recognized for their work on the Michael Morton case; and Jordan Pollock, a third-year UT Law student."

Corrupt in Covington?
Attorney Michael Lowe writes about a Texas Ranger investigation of alleged police corruption in Covington, TX.

Felony pranks
In College Station, a young Aggie has been charged with a third degree felony for online impersonation after posting a woman's cell phone number in the Craig's List casual encounters section as a prank. Though not a Texas case, in Georgia a valedictorian and senior class president has been charged with a felony for participating in ritual graff writing with a group of classmates as the end of their senior year approached. Texas has a similarly harsh law making any graffiti on school property a felony.

Lewisville sued over sex offender residency restrictions

The city of Lewisville has been sued over its residency requirements for sex offender registrants over and above state law, reports the Dallas News (behind paywall), with attorney Richard Gladden arguing that the ordinance prevents his client from living with his family. A reader pointed out this cogent reaction from a local who argues that "This ordinance was never really meant for public safety; it was meant for demagoguery. But its effects are punitive not only on the ex-offender, who ostensibly has done their time and paid their debt, but on their families. They are saddled with an additional burden at precisely the time when they need to be helping the ex-offender get back to being a productive, contributing member of society."

Police, defendants, social media and internet privacy

The Dallas News had an interesting item this week behind the paywall about police officers getting into trouble for outing misconduct or criticizing one another via social media and online message boards. The story opened:

The online message board postings read, at times, like a typical teenager attacking a classmate.

“She has an attitude problem and is all mouth,” wrote “Eskimo88” in one December post.

“SHES AN IDIOT,” he wrote in another, referring to the same person in a post the next day as “bat [expletive] crazy.”

But the posts weren’t made by an angry adolescent. They were published on a members-only local law enforcement message board, undergroundcop.com, by Dallas police Public Integrity Detective Jeff Baum, according to public records. He made the postings in reference to a since-fired officer whom Baum’s unit investigated for criminal misconduct.

The revelation that Baum is “Eskimo88” could threaten the credibility of pending criminal cases against former Sgt. Stormy Magiera, who is accused among other things of lying about a December Dallas robbery in which police believe she was trying to buy prescription drugs. And the case highlights a culture among some officers of gossip, rumor-mongering and personal attacks that can have career-threatening consequences in the Internet era.

“We are seeing people lose their careers over a posting on Facebook, whether it was about a crime that they went to or about another officer or about a citizen,” said Harvey Hedden, executive director of the International Law Enforcement and Trainers Association.

It's been quite the trend in recent years for police to mine social media for information about defendants, but I haven't seen it used as often to allege police misconduct. That said, allowing such unfettered, anonymous carping by employees in a criminal justice setting can become corrosive and harmful. I know Grits shut down some TYC/juvenile justice strings because of exactly that type of unproductive, personal sniping against non-public figures, and it's unsurprising, if disappointing, that the online culture in some police departments isn't much better.

Perhaps relatedly, the blog Liberty and Justice for Y'all has a post on a unanimous Court of Criminal Appeals ruling which confusingly seemed to adopt a three-pronged standard from a Maryland case for authenticating that online postings actually came from a specific individual and not just someone using their computer or posing as them. However, wrote B.W. Barnett, "While the State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury." So the court invokes a standard, then fails to follow it, but allows the evidence in anyway, declaring those methods are not exclusive. That, my friends, is outcome-based jurisprudence: Pick the outcome you want then pull a reason out of thin air to justify it.

In any event, the Tienda case will make it easier to establish the identities of police officers on sites like undergroundcop.com just like it makes it easier to prosecute workaday criminal defendants. In an odd sense, the police commenter Eskimo88 and the defendant in Tienda had somewhat aligned legal interests, at least as far as favoring a precedent that maximally protects internet privacy, forcing the state to prove authorship definitively as opposed to circumstantially.

What you say online, even anonymously, is increasingly likely to get you in trouble on the job or even with the justice system. I don't know that we've yet reached "the end of anonymity," but Internet privacy - for cops and citizens alike - certainly hangs by a tenuous thread.

Dallas jail will take fees for inmate health services out of commissary accounts

Dallas County will soon begin charging inmates fees for healthcare services reports the Dallas Morning News ("Dallas County begin charging jail inmates for medical care," Feb. 22, behind paywall). The story opens:

Dallas County Sheriff Lupe Valdez said Tuesday that she will soon begin charging certain jail inmates for their basic medical expenses, a practice common in some other states and a few Texas counties.

Valdez said Tuesday that within six months she will implement the plan to charge inmates a medical co-payment by tapping money in their commissary accounts, which they use to buy such items as toiletries and snacks. Inmates and their families put money in the accounts.

Those without commissary money will not be charged for medical services, officials said, and emergency and chronic care will still be covered by taxpayers.

“The families are putting money there and inmates can use it for gummy bears or to take care of their health,” said County Commissioner John Wiley Price.

Dallas County spent $32.3 million last year on jail medical services, which are provided by Parkland Memorial Hospital, said budget director Ryan Brown. Roughly 65 to 70 percent of the total inmate population receives some medical care, he said.

The Sheriff’s Department is working with Parkland to establish fees to charge for certain medical services, Price said.

The county has explored the co-payment idea, which is used in Travis, Harris and Collin counties, since 2004. But it has only become possible with a new three-year, $18 million commissary contract that the county commissioners awarded Tuesday to Keefe Commissary Network, Price said.

One statement in the story by Kevin Krause merits correction, where he mistakenly reported that a bill to have state prisoners pay for healthcare died in the Legislature:

A bill that would have increased inmate medical fees in state prisons passed the House in June but died after failing to receive support in the Senate . The bill, authored by state Rep. Jerry Madden, R-Plano, would have charged prisoners $100 per year for medical care unless they were poor.

Currently, state prisoners pay $3 per doctor’s visit.

In fact, though that bill died, the measure passed attached to another bill and has been implemented. See TDCJ's explanation of the new fee (pdf). That said, TDCJ's fee is a little different from how it's done in jails. Reports Krause:

The idea is not to generate revenue for the county but to cut recurring costs of transporting inmates to receive care, Price said.

“We won’t get what is called frivolous calls. So it saves us on staff,” he said. “We’ve got to try to contain costs where we can. Most of the time it’s about staff.”

Collin County charges $10 for a sick call visit, $3 for each medication prescription, and $15 for a doctor visit as well as a dental visit, officials there said. Mental health services are free as are chronic care services for such things as blood pressure conditions and diabetes.

Bexar, Fayette and Stephens counties also charge jail inmates for medical services, said Adan Munoz, executive director of the Texas Commission on Jail Standards.

Grits must admit, reducing malingering and unnecessary clinic visits was by most accounts a big effect of TDCJ's new fee, which is $100 per year, due on the first clinic visit from your commissary account or as your friends and relatives add money in the future (that's a ham-handed summary, see here for details). Though Grits generally disapproves of casting off incarceration costs on prisoner families, at the same time I must admit at being pleasantly surprised that the economic incentive reportedly worked to reduce malingering in an already overburdened system. (Prison Doc, Nurseypooh and other prison health workers/commenters, please correct me if I'm wrong about that in the comments.)

Down the line at TDCJ, it remains to be seen if those who do pay go back more frequently because they've "already paid" the fee (which is still far below the cost of actually providing healthcare). But in the short term, from what I've heard anecdotally, its success in reducing frivolous clinic visits was fairly dramatic when the fee was first initiated. The fee structure described for health services in jails creates somewhat different incentives than the higher TDCJ fee, but then jail inmates are also incarcerated there a lot shorter periods, at least in most cases.

Stepping back to look at the broader picture, there are a lot of important but seldom discussed policy issues surrounding commissaries, which let prisoners purchase goods with money put in an account for their use by family members or friends. So when government mulcts money from the commissary, they're not taking it from offenders (or in the case of pretrial defendants in jail, alleged offenders), but from their families and friends. Lately the state and some counties have been taking money out for healthcare costs. But they've also been in the news related to corruption scandals where private vendors allegedly bribed Sheriffs and or others, took them on lavish trips, etc., in order to get the lucrative contracts.

The Department of Justice says prison gangs use commissary accounts to "support gang members in prison by funneling [drug] money into prison commissary accounts of gang leaders."

Then there are the health issues, since everyone is worried about inmate healthcare costs. The examples of commissary foods given in the article are "gummy bears" and "Twinkies." You've literally got a captive market, why not offer healthier alternatives? (That goes for regular prison and jail meals, too.)

Then there's the big issue that separates TDCJ's fee on families to doing the same thing at the jail: Prisoners in TDCJ have all been convicted, while at the jail most are pretrial defendants who may or may not end up being convicted. Should the inmate or their family get the money back if charges are dismissed? How do you navigate that, or do you just ignore it?

In any event, I doubt we've seen the last of this trend. What do folks think about it?

Congratulations to Richard Miles, Dallas' latest non-DNA exoneree

Congratulations to Richard Miles, his attorneys, and supporters in Dallas after his exhilarating exoneration last week, as the Court of Criminal Appeals formally dismissed charges against him - a rare instance indeed given that there was no DNA evidence in his case, which is how most recent Texas exonerees have been sprung. Reported Leslie Minora at The Dallas Observer:

Congratulations to Richard Miles. Hurrah!

Free for two years, Richard Miles has nevertheless waited and waited for today -- the official acknowledgement that he did not commit the  murder and attempted murder at a Texaco near Bachman Lake in 1994 for which he was sent to prison. The detailed 52-page opinion handed down from the Texas Court of Criminal Appeals reads like the outline of a Hitchcock film, detailing two police reports that weren't disclosed at the time of Miles's conviction, a 2010 recantation from the only uninvolved eyewitness and the determination that the small amount of gunshot residue on Miles' hand was inconclusive. All of which amounted to the decision that the wrong man spent 14 years behind bars.

"When we balance the newly available evidence ... with other exculpatory evidence and the evidence of guilt presented at trial, we are satisfied that Applicant has shown by clear and convincing evidence that no rational jury would convict him in light of the new evidence," reads the court's opinion released today.

The Dallas County District Attorney's office recommended Miles's release in 2009 after they determined that flaws in his trial violated his constitutional rights. Since his release more than two years ago, he's been working, piecing his life back together and finding support in other exonerees as he waited for a decision from the state court, which must rule on all exoneration cases. But finally, as of today Miles can file for state compensation for his years spent locked up.

"This is going to be great for him because now he can do some of the things he wanted to do" like help his mother, said Charles Chatman, an exoneree who was released in 2008. Chatman and the other exonerees, including Miles, meet monthly, and Chatman tells Unfair Park that he and the other guys have given Miles a helping had since his release.

"We have helped him," Chatman says, quickly adding that Miles isn't "the kind of person who just depends on nobody." Miles has been getting by working at a hotel, Chatman said, but even finding a job was difficult without a declaration of "actual innocence."

The state court's decision comes a year after The Dallas Morning News checked in with him as he continued to await the ruling. Miles was released after Centurion Ministries, a non-profit that explores wrongful convictions, found previously withheld evidence that linked another man to the 1994 murder and compiled evidence in favor of Miles's innocence.

In a December feature, the Observer explored the complexity of exoneration cases where there is no DNA evidence to definitively prove guilt or innocence. Miles's case, a non-DNA exoneration, rested squarely on eyewitness testimony, and when the case was explored years later, it was discovered that two police reports were never turned over to the defense, as is required of the prosecution.

Wherever you are, take a moment to stand and applaud, or issue a triumphant "Hurrah!" on Mr. Miles' behalf. With no DNA evidence, and the recent Ex Parte Robbins ruling that raised the bar to near impossible heights to challenge tainted, inaccurate forensic testimony, it's unlikely Miles could have been exonerated if they couldn't prove prosecutors withheld exculpatory evidence, which once again was discovered after the fact via the Public Information Act. But the fact that all that other existed surely contributed to the convicting court recommending, with the assent of the Dallas DA's office, that Miles be granted habeas relief based on "actual innocence" as a result of the "Brady" violations.

This case provides another data point for Grits' hypothesis that, because of limitations imposed by the Court of Criminal Appeals in Robbins as well as an array of other court precedents and statutes over the years that chipped away at the efficacy of state habeas claims, today "prosecutorial misconduct - particularly withholding exculpatory evidence ... may be the quickest route to exoneration."

That was the path taken here. Miles' lawyers almost had to go that route because it's the main avenue the Sharon Keller Court and the Texas Legislature have left open, so byzantine and restrictive has modern Texas habeas law become. In truth, there were many grounds to call Miles' conviction into question that in an ideal world should have garnered him relief in addition to the Brady claims: As a reader put it via email, this was an "Amazing case that involved the Dallas Police not turning over exculpatory evidence, a show-up ID, and an expert who changed her opinion of the gun-shot residue evidence. A perfect storm of the various causes of wrongful convictions."

False convictions occur for a vast array of reasons, but under Texas habeas law, proving prosecutors violated Brady v. Maryland is one of the few areas besides DNA testing where Texas courts seem willing to provide relief.

Anyway, back to Richard Miles' exoneration. The same day the court's ruling was announced, an elated paralegal named Jena Parker, who formerly worked for the Dallas DA's office and now works for two former Craig Watkins-lieutenants now in private practice, sent out an mass email rejoicing and praising everyone involved. She worked on the case both at the DA's Office and in private practice, and certainly has forgotten more about it than I'll ever know, so let's close out this post by reprinting Jena's email here with her permission:

I am just emailing everyone that I have in my address book so if you get offended then hit your delete key.  Most of you know that I  have been very fortunate to work for Mike Ware for 18 years.  When Craig Watkins got elected D.A. in Dallas County he hired Terri Moore as his first assistant.  I could go on and on about what a remarkable job she did and that was brilliant that Mr. Watkins hired her.  Terri Moore came up with the idea of the Conviction Integrity Unit (CIU).  She knew that there were cases prior to Mr. Watkins taking office that had been turned down for DNA testing and she knew that there were already 10 exonerees.  So she came up with the idea of creating the CIU to look at cases where defendants were saying that they were innocent.   But she knew that in Dallas County, SWIFS had kept the evidence in these old cases.  So Terri asked Mike to head up the CIU.  I was very fortunate that I worked for Mike so he took me with him. 
 
To try to make this short.  I truly believe 100% if Craig Watkins wasn’t elected District Attorney then the other 17 exonerees (I think there are 28 exonerees now.  We had just finished working on Ricky Dale Wyatt when we left so it might be 29 exonerees total now.  I lose track  But I think after Craig Watkins was elected the CIU had a part in 17 or 18 of the 28 or 29 exonerees).
 
Back to my story.  In 2009, Jim McCloskey from Centurion Ministries came to talk to Terri about a defendant, Richard Miles.  Cheryl Wattley from Centurion Ministries and Jim had been investigating Richard’s claims of actual innocence.  Richard was convicted of a 1994 murder. Jim had done an TPIR request on the Dallas Police Dept and found 2 reports of 2 other suspects.  Jim had interviewed one of the possible suspects. Jim brought the case to Terri and Terri immediately had me try to get the D.A. file which I did and the CIU began its investigation.  This was a non DNA case.  Through our investigation we talked to the only witness that identified Richard as the shooter.  When we were interviewing him, he told us that when he got to court, he had told the prosecutor that he couldn’t identify the shooter.  The prosecutor told him to identify the guy at defense table. (The prosecutor was Tom D’Amore.)  After the CIU investigated this case along with Michelle Moore and John Stickels, they were also exonerated.) The witness signed an affidavit to that effect of what the prosecutor (Tom D’Amore) said about identifying Richard at trial.

The only other witness was the trace analyst from SWIFS. We sent her trial testimony and other evidence to her for her to re-review then Mike spoke to her.  She told Mike and also signed an affidavit that she would not have testified now to what she testified at Richard’s trial regarding the gun residue.  This was huge as it could open the door for other gun residue cases.  Based on this newly discovered evidence, Richard filed another writ which we agreed to his innocence.  This was over 2 years ago.  Today, the Court of Criminal Appeals wrote a published 26 page opinion which can be found here. The opinion stated all the investigation on his case including that there was a fingerprint on top of the victim’s car where the shooter would have put his hand.   Mike had our investigator, Jim Hammond (who is the greatest) to run it through AVIS and sure enough it came back to this guy.  Jim and Mike interviewed him and also he did a polygraph which he failed about the shooting.  I think it is a great opinion but what it does not do is name the prosecutor....

I have worked on cases that Michelle Moore (several) Gary Udashen, John Stickels, Jason Kreag from Innocence Project, Shirley Baccus-Lobel and other defense attorneys who had clients that the previous administration fought against from finding out the truth.  Patrick Waller’s case is another example of how I could go on and on about what Gary went through and then all the investigation CIU did to find the truth.  (And brother the CIU did an extensive investigation)  Steven Phillips another example of a WOW case.  Anyway, I could get on a roll about each case.  How in some of those cases the real perpetrator was in the previous administration’s file all along .  Just makes me ill thinking about all the injustice that went on.

Back to my story.  It has been over 2 years since Richard’s actual innocence writ was filed and today the court agreed that Richard is innocence.  Oh by the way.  On a different case that we worked on, Mike told the truth about a previous prosecutor not disclosing evidence and it was printed.  John Bradley, Williamson County District Attorney (and who all know about him fighting DNA testing in Michael Morton case for 2 years or longer.  And we all know that Michael Morton is innocent) called Mr. Watkins up and wanted Mr. Watkins to fire or discipline Mike.  (I forgot which one) Why did Bradley want Mike fired.  Because the previous prosecutor withheld Brady and Bradley didn’t like that Mike told the truth about her withholding Brady.  (Guess he figured that withholding Brady was ok as long as there was a conviction.)

Again, there is no doubt in my heart that if Craig Watkins had not got elected and if Terri Moore and  Mike Ware were not hired to be First Assistance and Chief of the Conviction Integrity Unit then those other exonerees would still be in prison today.  There is no doubt in my mind.  I hope I don’t get in trouble by sending this email as Mike and Terri don’t know but you all know me and my mouth.  I am sure it won’t be the last time I open it or type it.  I just hope this makes some sense because my emails are really confusing especially when I am trying to explain things.

Please take the time to read the opinion and if anyone has any pull its time we stood up to prosecutors who hide the truth.  Because as you know for every innocence guy in prison there is a guilty person still committing crimes on other victims.  Just ask the other victims in Stephen Phillips case or Thomas McGowan case or Stephen Brodie case or Michael Morton’s case. . . .

Stephen Brodie (false confession).  Another case you know I can talk about but I will shut up.  I got to work.

As you all know, Mike and Terri are back in private practice and I am really truly blessed that I am still working for Mike and Terri where they continue to seek justice. And Thank Goodness that the Court of Criminal Appeals did the right thing in finding that Richard Miles is innocent of murder.

Amen. Congratulations again to everyone involved.

Dallas DA defies court order, refuses to reveal police criminal histories

The Dallas DA last week refused to comply with a court order to turn over criminal histories of police officers, the Dallas News reports this morning (behind paywall), resulting in a contempt order and a contentious appeal:

The Dallas County district attorney’s office is battling a judge over whether prosecutors should routinely research and disclose the criminal histories of police officers who testify.

Criminal Court Judge Julia Hayes has on at least two occasions in recent weeks ordered prosecutors to determine the criminal background histories of police officers testifying in her misdemeanor court so that the information can be shared with defense attorneys. The district attorney’s office has refused, saying the law forbids handing over the information.

Hayes ordered a prosecutor held in contempt for refusing to comply with her order. In response, the DA’s office on Friday petitioned the 5th District Court of Appeals in Dallas to compel Hayes to withdraw the order about the records of officers.

Hayes, a Democrat in her first term, and public defender Elizabeth Perry, who is representing a defendant charged with family violence, declined to comment.

Defense attorneys say they worry that the law allows prosecutors to hide the background of police officers.

Defense attorney J. Michael Price II said that prosecutors already run the records of civilian witnesses and jurors and that he doesn’t see a difference in including officers.

“I think truthfully, they don’t want to run them because they don’t want to be in the position of finding that dozens of officers or more may have criminal backgrounds,” Price said.

The DA's Office, though, says the feds won't allow them to perform such searches:

A September 2001 letter from the U.S. Justice Department that prosecutors attached to their petition said that producing the records — even under a court order — violates federal law because it is an invasion of privacy. The letter was written to the Texas Department of Public Safety after a court order requested similar information in another Texas county.

The letter says that there is a difference if a criminal history already exists in the prosecutor’s case file. But the courts cannot compel prosecutors to create the information.

 I must confess, when we're talking about information in possession of the state, I don't see much difference in whether the info is in a database or in the prosecutor's file. It's well-established law that the state may commit a "Brady" violation, for example, even if law-enforcement never shared the information with prosecutors. And if it's true (as I'm almost sure is the case) that prosecutors run criminal histories of other witnesses, I don't particularly understand why police witnesses should get a pass.

Also, it's interesting that the letter in question is from September 2001, since almost immediately after that the feds began scaling back privacy restrictions and allowing much more widespread sharing of data among law enforcement in the wake of the 9/11 attacks. And I'm surprised, if the DA's position is accurate, that there's not a prior appellate case on point  as opposed to some decade-old administrative memo.

Should police officers' criminal history be revealed to defense attorneys? If not, why not? And what criteria might distinguish police from other witnesses for whom prosecutors routinely run criminal histories?

Dallas jail population dropping as crime declines

The Dallas County Jail right now houses roughly 7,800 inmates, according to comments by the Dallas County Sheriff's Office to the Texas Commission on Jail Standards this morning, down from more than 10,000 at its height. That's more than a 22% reduction, but even that may be low-balled. According to the most recent TCJS jail population report (pdf), as of Jan. 1 the Dallas Jail had just 5,741 inmates, which would amount to more than a 40% reduction, from the 10,000+ max.

This news comes on the heels of reports that Harris County (Houston) has 31% fewer inmates than their maximum just a few years ago, while the Bexar County Jail population is down 22% from its height. In all three counties, crime has dropped significantly throughout the period that jail populations went down.

Peer pressure promoting police binge drinking begins in academy

Tanya Eiserer at the Dallas News has a crackerjack story on the hot-button topic of alcoholism and law-enforcement culture ("They drink when they're blue: Stress, peer pressure contribute to police's alcohol culture," Jan. 16, behind paywall). Here's a notable excerpt:

Drinking is part of the police culture.

“They drink a lot, and they drink together,” said John Violanti, a research associate professor at the University at Buffalo and a former New York state trooper who studies police stress and alcohol use. “It’s part of the macho image, part of being a cop.”

Experts on police, and many officers, say cops drink because of peer pressure and high stress levels. They get into trouble with alcohol because they feel invulnerable and, as society’s helpers, are less likely to show weakness by seeking help. As mores change and technology advances, they’re more likely to get caught and their colleagues less likely to risk assisting them in covering up their problems.

The article is filled with examples of officers binge drinking with other officers then getting in serious accidents. The story opened with these anecdotes:

Kelly Beemer drank heavily at a South Dallas bar before hitching a ride home in a squad car, where she fired a gun through the floorboards.

Rachel Nicely downed margaritas at a Greenville Avenue bar before climbing behind the wheel, hitting a parked car and being arrested for drunken driving.

Jesus Cisneros had eight beers and four shots at a birthday party and later slammed his city vehicle into another car, killing the driver.

All were police officers with promising careers. All drank heavily with other off-duty officers on the day they got into trouble.

Their careers were ruined.

Other tales included an officer who showed up at a SWAT assignment with alcohol on his breath and later, in another incident, was found passed out in a running city vehicle with a can of Foster's in his lap. Despite those lapses, he was allowed to remain on the force eleven more years until another DWI forced his resignation. So some of these issues arise form lax police management giving second and third chances to chronically alcoholic officers, even when they drink on the job.

A treatment provider said that "suppressing trauma and stress" is a root cause of alcoholism in law enforcement, but it's also clear that peer pressure to participate in police drinking culture begins well before officers ever hit the street. According to one expert quoted, "Rookies are indoctrinated into the brotherhood in blue and the culture of alcohol consumption at the police academy." One of the ex-Dallas officers interviewed said that's where her problems started:

Former Dallas police officer Shelly Pierce said in an interview that she drank a lot while in the academy and afterward. She typically drank, off duty, with other officers and a shared expectation that it was going to be a wild night.

“When we go out, we’re going out,” said Pierce, who lost her job over a 2006 drunken-driving arrest. “We’re getting drunk. We’re going to be the loudest. All the attention is going to be on us. … It’s because of that whole ‘shock and awe’ thing. I’m going to be the one that shocks.”

Laura Brodie, a California-based psychologist who worked with the Los Angeles Police Department’s employee assistance program, said she has found a lack of moderation prevalent in the police culture.

“It’s all or nothing,” she said. “When they get into drinking, they start competing in their drinking.”

First-rate reporting by Eiserer on a seldom-discussed subject. As she'd reported in a 2009 story, roughly 89% of police suicides (which occur far more frequently than deaths in the line of duty) involve alcohol abuse, so this subject not only impacts the safety of the public (nobody wants a drunk in uniform wielding a gun or arrest authority) but also the officers themselves.

'Neither punished nor treated, just jailed'

At the Dallas News, columnist Steve Blow had a piece yesterday ("Mental illness leaves man trapped in county jail," Jan. 15) about a defendant named Reveau Skinner suffering from paranoid schizophrenia who was declared incompetent to stand trial but then waited in jail more than a year (so far) for a state hospital bed to open up to provide competecy restoration services (i.e., treatment to stabilize and medicate the iillness so the defendant is competent to participate in his own defense). Notes Blow:

If it were his heart or a hip that malfunctioned, he would undoubtedly be in treatment. But since it’s his brain that has the problem, he sits in jail month after month.

He should have been released a long time ago. But now he’s caught in the abyss between our criminal justice and mental health systems, neither being punished nor treated. Just jailed.

Earlier, a plea bargain was struck that would have released Skinner on probation - the victim in the domestic violence that sent him there incident had no desire to press charges. But after the court declared him incompetent, he couldn't even enter a guilty plea until after he'd been restored to competency, and that part of the process has stalled because of the shortage of state hospital beds.

The judge apologized to Skinner, but with that apology and a dollar he perhaps could get a soda at the commissary, but  not much else. IMO, after such a long time the judge should have flat-out ordered the state hospital to take this fellow, as judges in other jurisdictions have begun to do.

The Legislature this year gave with one hand on competency restoration while taking away with the other. They passed a statute for misdemeanor  defendants requiring their release if they don't get timely competency restoration, but for those charged with a felony, as in this case, there's no such safety valve. Meanwhile, they actually cut funding for state hospitals and mental health treatment, heightening scarcity and increasing time on waiting lists for competency restoration treatments.

This situation has lingered as long as your correspondent has been paying attention to county jail issues, and it's an area where underinvestment by the state heaps big problems and costs onto counties. To make matters worse, the only legislator who last session made the issue a real priority - Rep. Will Hartnett - is retiring from the Lege and will not return. Texas desperately needs somebody to take leadership on this question, but a betting man would likely wager the malaise and inaction will continue indefinitely, particularly with large budget shortfalls projected again in 2013. The situation is difficult for local officials but impossibly frustrating and cruel for the defendants themselves.

Indeed, in some ways the system seems more incompetent than the defendants. We understand that mental illness caused Skinner's incompetence, but what explains the incompetence of legislators, the governor, and the Department of State Health Services (which operates state mental hospitals) to cease this recurring nightmare? At least Mr. Skinner has a good excuse.

See prior, related Grits posts:

• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

'Beyond DNA': Innocence focus in Dallas shifting to non-DNA cases

There's an excellent piece in the Dallas Observer this week (Dec. 29) by Leslie Minora titled "Beyond DNA, Difficult Tests for the Justice System," which brings readers up to speed on a pair of non-DNA exonerations in Dallas this year and the future of innocence cases. Particularly troubling was the case of Dale Duke, who accepted a no-contest plea on a 1992 sexual assault he always denied in order to stay out of prison, but

In an Orwellian twist, prosecutors brought Duke back to court in 1997 and claimed he did not complete the treatment program. In effect, Duke violated the terms of his probation by not admitting to a crime he didn't commit. Duke took a Tuesday off work as a customer-service assistant at Eckerd to appear in court. He never returned to that job. The judge revoked his probation and saddled him with a 20-year prison sentence.

Watkins' Conviction Integrity Unit found corroborating evidence for Duke's innocence claims in their files that had never been turned over to the defense, which was the basis for overturning his case. The judge ruled that, with the evidence prosecutors concealed back in 1992, no reasonable jury would have convicted him. Though four of the 17 exonerations under DA Craig Watkins have been non-DNA cases, former public defender

Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says.

"I get that sometimes it's not as clear-cut as a simple DNA test, because that's a gold standard, but there are cases ... where there should be some things happening," she says, though she wouldn't mention any specifically, fearing they would take even longer. "[Russell Wilson] is a very well respected attorney; he's the nicest man on the planet. I just want to see more action," Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. "I'll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing," Moore says, but she's still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

Grits has said in the past that non-DNA case are "the future of the innocence movement," and this article aptly explains why. DNA exonerees, Minora points out:

occupy a troubling time in criminal justice history. Their arrests, and the arrests of nearly all of the Dallas County exonerees, occurred from the early 1980s to the early 1990s. In this decade-long window, DNA samples were collected because blood-type testing was available, but the samples were not tested with the technological acumen that's been developed since.

Starting in the mid-1990s, the testing of DNA evidence became standard protocol, meaning the number of incarcerated people who can be exonerated by previously untested DNA evidence is finite, with few exceptions.

Tis true. In most older cases, DNA either wasn't collected or wasn't kept, and it only exists in the first place in around 10% of violent crimes. In essence, DNA provided the equivalent a statistical sampling of innocence cases and a unique window into their causes.

"Now we've shown that there are wrongful convictions, so now our conversation can be extended to eyewitness identification, investigative techniques, even prosecutorial misconduct, the culture of district attorney's offices ... and our failure to live up to the code of criminal procedure," seeking not only convictions, but justice, Watkins says.

Williamson County DA John Bradley raised his head out of his electoral foxhole long enough to put a devilish spin on the quest for non-DNA exonerations. He:

said as more DNA cases are resolved and there are fewer of them, organizations like the Innocence Project must take on new kinds of cases. "We have an Innocence Project, therefore there must be innocent people," he says, leading up to his point that "just as we sometimes wrongfully convict a person, sometimes we wrongfully exonerate a person."

Ironically, given that Mr. Bradley is commenting on it, in the near term, prosecutorial misconduct - particularly withholding exculpatory evidence, as notoriously occurred in the Michael Morton case on his predecessor's watch - may be the quickest route to exoneration. That's what got Mr. Duke out.

Besides so-called "Brady violations," though, the concern was expressed by others, IMO accurately, that "DNA evidence may have raised the bar to a level too often unattainable by cases without it." Certainly there are still categories of non-DNA cases to mine for valid innocence claims. An examination of arson cases by my employers at the Innocence Project of Texas and the state fire marshal, initiated at the recommendation of the Forensic Science Commission, could discover false convictions based on flawed forensics testimony. Nobody has thoroughly vetted (nor to my knowledge, even identified) the 2,000 or so cases where former Fort Bend Sheriff's Deputy Keith Pikett claimed to have used his dogs in "scent lineups." And there are other similarly discrete categories of cases to explore.

But looming over all such cases, and indeed, though unstated, over this entire article, was a decision by the hard-line wing of the Texas Court of Criminal Appeals this summer in Ex Parte Robbins, in which the court overtly realized fears that DNA "raised the bar" for exoneration too high. Particularly in cases centered around bad forensics, the Legislature will likely need to adjust the habeas statutes for anyone to actually make use of them in junk science cases.

So I agree, the future of the innocence movement must inevitably move "beyond DNA," and on the policy side in Texas where I work, it has, with the passage of eyewitness ID legislation and requiring corroboration for confidential informants, in particular. But those are front-end fixes. On the back end, access to DNA testing has been expanded and the Lege has provided compensation for exonerees. But after Ex Parte Robbins, there likely needs to be a separate legislative fix before the courts will be able or willing to act on significant numbers of non-DNA "actual innocence" habeas corpus claims - particularly regarding junk science, from arson cases to dog-sniffs - however valid or compelling.

The age old story: Cop attacks protester, arrests protester for assault, but this time caught on video

Via Unfair Park and Injustice Everywhere, on Nov. 5 Occupy Dallas protester Stephen Benavides was arrested, maced and spent four days in jail for allegedly assaulting an off-duty police officer, 19-year veteran Jimmy Hollis. When video showed that Hollis actually initiated the violence by shoving the fellow off a 4' planter, the chief issued a one-day suspension without pay and forbade him from working off-duty jobs for 60 days. So the cop got a day off and missed out on a few holiday security gigs, while his victim was attacked, maced, spent four days in jail, and is still waiting for charges to be formally, finally cleared. Dumb, dumb, dumb.

Often protest movements that begin small escalate not because of the righteousness of their cause (or in this case, the nebulousness of it) but because the state engages in police brutality or illegal methods to suppress or discredit it. That's the risk run when police respond violently to Occupy protesters. And doling out slaps on the wrist to offending cops in incidents like this one adds insult to injury. Remember it wasn't the images of Rodney King's beating that sparked riots and national protests back in 1992, it was the acquittal of the officers so clearly seen wailing on him in the video. People understand there will always be bad apples, but they want to see them held accountable.

I'm not a great fan of the Occupy movement, but neither do I endorse a police officer initiating violence then blaming it on protesters. The cop in that video wasn't doing his job, he was just a bully in uniform.

RELATED: From The Crime Report: "Police vs. OWS."

Real estate collateral for bail bonds inflated

On Sunday, the Dallas Morning News published a story by Ed Timms and Kevin Krause (behind paywall) which:

found that bail bondsmen across Texas ... [write] millions in bail bonds while pledging real estate collateral worth a small fraction of that amount. Some hire private appraisers whose property values are dramatically higher than tax values that they contest.

Counties may collect only nickels or dimes on the dollar when they try to sell the properties pledged as collateral if bail bondsmen can’t pay for bonds that go bad, or if they go out of business. And that means financially strapped counties could lose many millions in revenue.

The Texas Occupations Code allows bail bondsmen in large counties to write bonds worth five to 10 times the value of real estate placed in trust with a bail bond board, depending on how long they’ve been in business and whether their license was ever suspended or revoked. Another option allows bondsmen to use insurance companies that back their bonds.

“The county has taken bath, after bath, after bath,” said Don Davis, a longtime assistant district attorney in Dallas County who monitored bail bondsmen. “If you don’t have a 1-to-1 ratio, that’s when the temptation is to start taking liberties with your liquidity and try to make as much money as you can before you pull out.”

The lengthy News story found that consistently property appraisals used to justify bail bonds were vastly higher than the appraised value at the tax assessor's office, and in some cases bail bond companies submitted much lower appraisals to the county taxing district disputing their valuation than the inflated estimates given to local bail bond boards. In some cases bail bond companies used appraisers with a history of disciplinary actions for writing inflated appraisals.

Krause and Timms have been tearing this story up for months. In a related item from December 6 (that's not behind the paywall), the Dallas News editorial board opined that:

At the very least, the standard operating procedure underpinning Dallas County’s bail bond system should be “trust but verify.” As revealed by this newspaper, the situation is more like “look the other way and approve.”

In a series of articles stretching back to June, The Dallas Morning News has detailed numerous cracks and loopholes in the county’s bail bond system. Shoddy follow-through is costing county taxpayers and making a mockery of a system intended to assure that a defendant doesn’t simply disappear.

The latest fiasco, detailed by reporters Kevin Krause and Ed Timms earlier this week, involves bondsmen who filed court papers claiming that clients whom they had helped get out of jail — and who later skipped town — had been rearrested. Those rearrests of bail jumpers saved the bondsmen substantial money.

There’s just one problem: Many of the bondsmen didn’t file — nor did judges and lawyers demand — basic documentation to back up the rearrest claims.

Let’s start with the disturbing fact that some bondsmen just make up these stories. How do citizens have confidence in a system that condones that kind of abuse? Equally important are the pocketbook implications of this laziness and dishonesty.

See Grits' discussion of the story they're discussing here.

I'm continually amazed at the deference afforded bail bondsmen by state and local officials. The amounts of money they give in political campaigns don't seem to justify it, but examples like these show there are a lot of folks willing to carry water for the bail bond industry, or at least, when necessary, to "look the other way."

False reports of rearrest relieved Dallas bond company of liability for bail jumpers

Kevin Krause and Ed Timms at the Dallas News have an excellent investigative report ("Dallas bail bondsman falsely reports defendants rearrested to avoid losses," Dec. 5, behind paywall) revealing an extreme lack of oversight that lets Dallas bail bondsmen submit unverified and sometimes false reports claiming their clients were rearrested in order to avoid paying bond forfeitures. The story opens:

 Joellen Hamil left North Texas with her children shortly after bonding out of jail on a theft charge and settled in her Pennsylvania hometown.

Not long after his sixth or seventh drunken-driving arrest, Luis Alonso Lopez skipped bail only to be tracked down in Florida years later.

Enrique Trejo disappeared after a bail bond freed him from jail; he has yet to be brought back to face trial.

In these cases and others, the bondsman who helped spring these people from jail claimed in court papers that they had been rearrested, without including any documentation to back up those claims. That saved the bondsman thousands of dollars that in some cases would have been forfeited to Dallas County as required by law when someone jumps bail.

The county, unlike other large metro areas, lacks standard rules for such procedures, and prosecutors and judges in most cases accept arrest claims as fact in an “honor system” with little or no scrutiny. It’s the latest example of how the county’s handling of bail bond cases has led to declining forfeiture revenue and problems collecting on judgments, as detailed in previous reports by The Dallas Morning News.

Typically in Dallas, bond companies aren't required to provide detailed proof of rearrest before courts relieve them of liability for the forfeited bond. In theory requests for release from forfeiture obligations could be opposed by the local DA's office. "But in Dallas County, prosecutors apparently do not contest information that bondsmen provide in bills of review. Doing so would require a hearing. ... [L]awyers say they cannot recall the last time a hearing was held in Dallas County over a contested bill of review."  DA Craig Watkins, himself a former bail bondsman, called it the "honor system":

It’s unclear how often lawyers don’t provide proof of claims that get bondsmen off the hook financially in Dallas County, but to the extent that it happens, bondsmen lose any incentive to track down fugitives, who may continue to jeopardize public safety because the law lost track of them.

District Attorney Craig Watkins, a former bail bondsman, declined to comment on specific cases but said his office and a new county task force are working on new bond forfeiture policies that will require better documentation.

He said the process in Dallas County has been too informal for years. He likened the Frank Crowley criminal courthouse to a junior high school where everyone knows and trusts one another. If a lawyer files a motion asserting something, then “there’s no reason to distrust them,” Watkins said.

“Dallas County has been on the honor system a long time,” Watkins said.

One notable factibite that doesn't get enough attention when discussing the merits of commercial bail bonds: Cathy Braddock at the Harris County DA's office told the reporters that "in about 90 percent of forfeiture cases, the bondsmen played no role in the rearrest ... Usually, Braddock said, defendants are rearrested during traffic stops because of the active warrants." If the government is really responsible for 90 percent of rearrests, the cost-benefit case for commercial bail - which has been outlawed nearly everywhere else on the planet - gets much, much weaker, even if rearrest rates weren't fraudulently inflated.

This excellent story is part of a series in the Dallas News over the last several months on the bail bond industry, and at the end of the story they summarized key findings from past reports:

• Current and former bail bondsmen and attorneys authorized to write bonds owed the county $35 million in unpaid judgments, some dating back decades and thus uncollectable.
• The county did not have a system to track bond forfeiture cases to make sure those with final judgments were paid on time.
• For some lawyers authorized to write bail bonds, the business can be lucrative. It is largely unregulated, allowing many lawyers to walk away from money owed to the county.
• District Attorney Craig Watkins, whose office is responsible for seeking judgments against bondsmen, still owed Denton County more than $3,400 from when he wrote bonds as a defense lawyer.
• Dallas County until recently was charging bondsmen bargain rates for fees owed when their clients missed court, and the county had not been charging interest on money owed.
• Some criminal court judges and the DA’s office have been letting bondsmen off the hook for hundreds of thousands of dollars in court judgments against them, in many cases with no explanation of their decisions.

Journalists elsewhere should take note of Kevin and Ed's methodologies and think about how they might apply them on their own local beats. This is reportorial work about a critically important but little-discussed aspect of the justice system that could be recreated (with some time and a lot of legwork, admittedly) in most jurisdictions in the state.

Related:

• Dallas judges cut breaks for bail bondsmen when clients fail to appear in court
• Dallas County may never see $35 million owed by bail bond companies

Cuts to mental health may leave Texas jails warehousing more mentally ill

As was predicted even before the 82nd Texas Legislature began, large budget cuts to front-line mental health providers are handcuffing community-based treatment programs and shifting the burden (and cost) to local police and county jails. Reports Kevin Krause at the Dallas News (Nov. 27, behind paywall):

Dallas County officials and homeless advocates say millions of dollars in planned state cuts to mental health care will severely tax an already overburdened system and could lead to increases in the homeless and jail inmate populations.

Money for Dallas County and six neighboring counties that receive mental health services under a privatized system called NorthStar will see $10.7 million less in the 2012 fiscal year, officials said.

That includes about $5 million used to treat people who are sent to state hospitals such as the one in Terrell.

Dallas County commissioners recently sent a letter to the Legislature’s two top budget writers, explaining the situation and asking for help. Ron Stretcher, the county’s criminal justice director, said help was promised.

But it may not come soon enough.

“We’re asking to have that money restored,” said Stretcher, who acknowledged that that is unlikely. “We’ve had to start cutting.”

The first round of cuts will go into effect Dec. 1, he said.

Between 70 and 100 clinic-based caseworkers will be laid off, Stretcher said. And less inpatient psychiatric care will be contracted for at Green Oaks Hospital.

Also, an after-hours clinic operated by MetroCare Services for people who missed appointments or have trouble seeing doctors will close, he said.

And the county will have fewer case managers at housing projects for those who previously were homeless because of mental illness or substance abuse, Stretcher said.

Those cuts cover about half of the expected deficit, he said.

The same story, no doubt, could be localized nearly everywhere in the state. Of all the dunder-headed, penny-wise, pound-foolish decisions affecting criminal justice coming out of the 82nd Legislature, this one strongly competes for top billing (perhaps along with underfunding prison healthcare by $100 million without reducing their number of patients). At this point, ironically, for some folks on the lowest rungs of society, the only way to access mental-health services really is to commit a crime.

In particular, cutting "case managers at housing projects for those who previously were homeless because of mental illness or substance abuse" has real public-safety implications, taking some of the support out of "supportive housing" often aimed at frequent flyers from the jail. It also has implications for the county budgets, since most big-county jails are full and the mentally-ill often cost several times as much per day to incarcerate as the average prisoner.

As a practical matter, this year's cuts to community-based mental-health programming amounted to an all-but-overt decision to dump the costs onto local criminal-justice systems, particularly county jails, as a back-end, off-the-books substitute for community-based care. As a result, “'We’ve won the race to the bottom,' said Matt Roberts, president of Mental Health Association of Greater Dallas," to Kevin Krause.

The justice system has a lot of moving parts, some of which, as with community-based mental health services, aren't formally even part of the justice system. In too many cases, when somebody's homeless, mentally ill and stealing, trespassing, begging or sleeping where they oughtn't or even engaging in aggressive behavior, local authorities have few short-term solutions available to them besides the jailhouse. This year's cuts narrowed locals' options even further, by this account gutting community-based supports in Dallas that divert folks from jail and prevent crime.

Shifting costs to counties in a way that costs taxpayers even more isn't so much a conservative budgeting approach as it is an abdication of leadership. If your goal were to cut overall costs to the taxpayer and maintain or improve on the all-time low crime rate the state and nation enjoy at the moment - and if, heaven forbid, you didn't suffer from the myopia of focusing one funding stream but instead sought overall cost containment - a wiser strategy would be to boost resources for community-based alternatives to avoid using (more expensive) local jails as a primary mental-health provider whenever possible. Instead, the Lege de facto chose the most expensive and least practical approach to the problem, further transforming large wings of the jailhouse into mental health wards while cutting social services on the front end.

That's a helluva way to run a railroad.

Latest Dallas exoneration stems from recantation, withheld evidence

The Dallas News reports today (behind paywall) of yet another exoneration out of Dallas - this time based on  a years-ago recantation by the alleged victim and withheld exculpatory evidence. Wrote Jennifer Emily:

A man who went to prison rather than falsely admit that he was a child molester was freed Friday morning after 14 years behind bars.

State District Judge Susan Hawk said it was “unjust” that he had remained behind bars for years after his stepdaughter admitted she’d lied about the abuse.

Dale Lincoln Duke’s stepdaughter had recanted her claim of abuse in 1992, but at judge at that time apparently didn’t believe her. It was recently learned that the Dallas County District Attorney's office had withheld evidence during Duke’s trial which showed that the child's grandmother thought the child was lying.

After Duke plead no contest to the aggravated sexual assault charges, he was placed on probation, but sent to prison when he didn't admit to the abuse as part of his therapy. Duke, now 60, said Friday that he refused to confess to a crime he didn’t commit because the Bible says, “Do not bear false witness.” ...

The girl first recanted in 1998, but a judge who is no longer on the bench refused to release Duke. Then, in March, the DA's office discovered in their files a note saying that the child's grandmother believed the abuse allegation was false and that the girl's aunt had encouraged the lie.

In most Texas counties this would never have come to light. It's only happening in Dallas because DA Craig Watkins established his "Conviction Integrity Unit" to review old cases. Count this episode as yet another argument why there needs to be some mechanism for holding prosecutors accountable when they withhold exculpatory evidence. Congrats to Duke, his attorney Robert Udashen, and to Watkins' office for having the rare courage to expose errors instead of cover them up.

Dallas judges cut breaks for bail bondsmen when clients fail to appear in court

The Dallas News on Sunday published an well-researched report on judges who don't make bail bond companies pay when their clients fail to appear in court, an issue which I'm coming to realize also arises in many other Texas jurisdictions. The story by Kevin Krause and Ed Timms ("Dallas County judges give bail bondsmen financial breaks when clients disappear," Oct 2, behind a paywall) opens:

Some of Dallas County’s criminal court judges have been letting bail bondsmen walk away from hundreds of thousands of dollars in court judgments against them — often with the blessing of the district attorney — and in many cases without scrutiny or explanation for their decisions.

The Dallas Morning News found cases in which felony court judges dismissed six-figure forfeiture cases against bondsmen even though their clients had missed court and apparently hadn’t been recaptured. There may have been a good reason, but the case files didn’t reflect one. And many judges and bondsmen aren’t talking.

Some current and former judges say decisions about bond forfeiture cases are generally made informally through discussions with the various parties, without hearings or motions or any record of such talks.

They say they will usually approve a forfeiture case dismissal only if the DA’s office and the bondsman are in agreement. If not, a hearing will probably be held — usually by the magistrate judges. Such hearings are rare, judges say.

Seven recent felony cases alone resulted in the collective loss of $700,000 in potential bail bond forfeiture revenue to the county, court records show. That’s equal to all of the bond forfeiture revenue the county has received over the past two years combined in felony court.

Those are the latest findings of a continuing examination by The News of Dallas County’s bond forfeiture operations. The News also found that:

In many cases, judges are not initiating forfeiture actions against bondsmen when their clients miss court and disappear.

Dallas County judges are inappropriately dismissing numerous other forfeiture cases after bondsmen request to “go off bond” to avoid liability if their clients miss court.

The DA’s office is agreeing to let bondsmen off the hook for thousands of dollars in forfeitures even after their clients disappear. In one case, a prosecutor signed off on a deal to dismiss a $100,000 forfeiture judgment against a bondsman even though the defendant was a fugitive.

It’s unclear how widespread these practices are because the county doesn’t track them. 

Grits has been researching a similar story- coming soon - related to bail bond forfeitures in Smith County, but in the meantime Krause and Timms seem to have dotted all their i's on this one.

There's little identifiable benefit to eschewing bond forfeitures for anyone but the bail bond industry itself.  Wrote Krause and Timms: "The result of these decisions is that many bondsmen in Dallas County are being allowed to pocket thousands of dollars in fees from defendants for writing essentially risk-free bonds, and they have little incentive to try to track down fugitives they helped release from jail."

The cost to county taxpayers during an era of fiscal austerity is tremendous: "Felony bond forfeiture revenues in Dallas County have fallen almost 70 percent since 2006 and are significantly less than what’s collected in neighboring Tarrant County, which has a smaller population."

There are certainly legitimate reasons for dismissing forfeiture cases for absconders. Under state law, reasons that justify such dismissals are "sickness or some other uncontrollable circumstance, the defendant’s death, the defendant’s incarceration, an invalid bond, or failure by the state to win an indictment of the defendant within a certain time," reported the News.

But in many counties across the state, not just in Dallas, forfeiture amounts are routinely reduced or eliminated by judges or DAs. Under the Texas Occupations Code:

Sec. 1704.205.  BAIL BOND SETTLEMENT. Before a final judgment on a forfeiture of a bail bond:

(1)  the prosecuting attorney may recommend to the court a settlement in an amount less than the amount stated in the bond; or

(2)  the court may, on its own motion, approve a settlement.

So District Attorneys offices can recommend lowering or eliminating forfeiture amounts or judges can do it on their own without any input from the DA. In Dallas it sounds like mostly judges doing it on their own. Further, the crop of new Democratic judges swept into office in 2006 and 2008 appears to have exacerbated the problem. Again from the Morning News:

Felony bond forfeiture revenues in Dallas County have fallen almost 70 percent since 2006 and are significantly less than what’s collected in neighboring Tarrant County, which has a smaller population.

And bond forfeiture set-asides are on the rise.

The News analyzed Dallas County bond forfeiture data dating to 2005 and found that forfeiture set-asides have increased greatly since 2007.

Set-asides numbered about 780 in 2006. And every year since 2007, when a new slate of judges took office, they have totaled more than 2,300. In 2006, the county potentially lost about $4 million worth of forfeited bond money because of set-asides. In 2007, that grew to $8.4 million.

Dallas County District Clerk Gary Fitzsimmons said the actual numbers are even higher because the data collected by the county is not accurate.

In Harris County, according to a knowledgeable source Grits spoke to yesterday, District Attorneys dating back to Carol Vance (1966-'79) have considered the state law allowing reduced or waived forfeiture settlements to be unconstitutional. That's because of a provision in the Texas Constitution, Article III, Section 55, which states that, "The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual to this State, or to any county, or other municipal corporation therein." The only exception is for "delinquent taxes which have been due for a period of at least ten years."

In Harris County, the DA's Office interprets that provision as trumping Sec. 1704.205 of the Occupations Code and thus won't agree to waive or reduce forfeitures as is done in Dallas. The problem is, in counties like Dallas that routinely use authority under 1704.205, nobody has standing to challenge the practice in court. Bail-bond companies themselves obviously have no incentive to do it, and if local officials interpret the Constitution as Harris County does, they simply change their own policies instead of litigating the matter. Since the debt dispute is a civil claim between the bail bondsmen and the county, nobody else has standing to challenge their interpretation, much less a vested interest in doing so. Taxpayers have a theoretical interest at stake, but not a legal one.

The missing, unspoken piece of the puzzle here is the political influence of bail bond companies, whose owners and employees are often reliable contributors to incumbent judges, DAs, state legislators on key committees, and county officials on the local bail bond board. It's a safe bet that if you compiled lists of owners and employees of bail bond companies and cross-checked them with political donors to the various pols involved in the process, they're pumping significant amounts into the campaign coffers of incumbents who affect their business. (As the kids are chanting in the Wall Street protests, "This is what democracy looks like.")

I'd love to see reporters across the state replicate the work done here by Mssrs. Krause and Timms. From their reporting, it sounds like the Harris and Bexar DAs won't reduce or waive forfeitures at all, though individual judges might still do so. But according to an email I received this morning from Ken Good, a Tyler attorney representing bail bond companies, many other counties aren't requiring bail bond companies to forfeit the full amount: "Tarrant County settles for 35% with no defendant. There are other counties [that] do similar. El Paso County will always settle for less than 100% without the body." It'd be a great mitzvah for reporters in other jurisdictions to explore these questions elsewhere in the state.

Other than simply eliminating Sec. 1704.205 of the Occupations Code, which would be fine by me, it's difficult to suggest reforms to fix the situation because the process is so opaque. If anyone at the Legislature wanted to address the matter, the first step might be simply to require data collection on forfeiture reductions and waivers. It'd also be a good idea to make judges put their decisions on forfeiture reductions and their reasons for giving them in writing. As it stands, the process is too murky and smacks of good ol' boy cronyism. Even when everything is on the up and up and the reasons for reductions are legitimate, from taxpayers' perspective the situation just doesn't pass the smell test.