Two suggestions, one radical, one modest, on prosecutorial reform

I ran across two additional, suggested approaches to reduce prosecutorial misconduct: First, here's an interesting idea for prosecutorial reform: Separate conflicting prosecutorial functions.

No one likes to be inspected. Naturally, prosecutors facing trials will be tempted to mobilize the leverage that extra years of incarceration provide to avoid the inspection stage altogether by forcing pleas.

In  Missouri v. Frye the Court  took belated note of this fact, recognizing a right to counsel in plea bargaining in part  because “longer sentences exist on the books largely for bargaining purposes."

“This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” the Court continued.

Each year of incarceration that your prosecutor is now deploying to avoid trial inspection costs at least $40,000, and the money comes from the Corrections Commissioner’s budget, not from the prosecutor’s.

Each year in jail amounts to a $40,000 unfunded mandate, and it forces trade-offs in expenditures for education, for health, and for everything else. That isn’t the prosecutor’s problem: he has a blank check which buys as much leverage as he likes.

He can spend your money to avoid his trials.

The proposed "Swiftian" solution: To "divide American prosecutors into two separate and independent offices." The office responsible for trying cases would be dissociated from

an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.

For my part, if we're considering such radical reform, I might suggest instead (or perhaps in addition to) following the lead of the British Crown Prosecution Service, where attorneys may serve as prosecutors one day and defense lawyers the next. To me, the problem is not the prosecutorial function so much as an entrenched prosecutorial culture and mindset that leads to tunnel vision and politicized justice.

Second, a reader saw a past Grits post suggesting prosecutorial misconduct reforms including requiring judges to name prosecutors in orders when there are Brady violations or other misconduct. This reader sensibly suggested pursuing a bill that would "Require the clerk - not the judges -to insert on all orders the names and State Bar Card Numbers of all prosecutors and defense lawyers." Our friend continued, "In civil cases, the lawyer who drafts an agreed motion and/or agreed order does this anyway, so it won't be a stranger to anyone in any county clerks' office or district clerks' office." Excellent point.

Travis DA race: Should we learn lessons from false convictions, or even acknowledge them?

There are many reasons to be cynical about modern elections, but one functional benefit they provide - at least in seriously contested races - is to force incumbents to defend their practices, raise up alternative approaches, and generally provide an opportunity for public debate about the minutiae of a job that normally is never the subject of media coverage nor even public conversation. In that vein, the Austin Chronicle has an interesting back-and-forth interview/comparison with Travis County DA candidates, incumbent Rosemary Lehmberg and challenger former Court of Criminal Appeals and District Judge Charlie Baird. (See the Chron's earlier coverage of the race.) The first item on the Chron's list is of issues "Wrongful Convictions," and here I immediately fall out with the incumbent DA, who announces that:

We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. ... But it was after the two mistaken identification deals ... that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.

Baird argues that the department has not taken the lessons from wrongful convictions to heart:

She says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, "Well, my God, why did this happen in Morton?" Or Ochoa and Danziger?

While I agree with the need to re-evaluate internal practices when false convictions occur, to me Lehmberg's response raises an even more troubling concern. As is often the case when interpreting political rhetoric, perhaps more important than the incumbent's actual statement is what she left unsaid. The DA doesn't say which cases she's talking about and Grits can't tell from the context. She said the exonerated two were based on false eyewitness IDs, for example, so that wouldn't include Christopher Ochoa and Richard Danziger. So she seems to be downplaying and understating her office's problem with false convictions.

In addition, she's seemingly not including the Yogurt Shop defendants among the exonerated. There, DNA evidence obliterated the state's theory of the crime, causing the convictions to be overturned and the defendants to be released. If Lehmberg is not including those defendants in the totals, that means she's clinging to the preposterous unindicted co-ejaculator theory involving some mysterious fifth perpetrator unforeseen by the prosecution's theory nor referenced during the lengthy interrogations that led to the overturned confessions. (Perhaps she's only including cases that came to the office while she was sitting as DA, but she was First Assistant for a dozen years before that and a key decisionmaker on the appeals and writs in question.)

So my concern is less that the office hasn't learned any lessons from the two cases that they grant resulted in false convictions, but more that she seems to remain in denial over false convictions in the Yogurt Shop and Pizza Hut murder prosecutions that gives me pause about her re-election.

Baird, by contrast, has consistently been on the cutting edge of the notion that false convictions could be rooted out while still ensuring the guilty are convicted, standing up as a leader on the issue as far back as the late 1990s both while serving on the Court of Criminal Appeals and afterward, leading Grits to recently call him "virtually the father of Texas DNA exonerations" for his role in the Roy Criner case.

Lehmberg's somewhat blindered, bunker mentality IMO doesn't stem from some nefarious desire to falsely convict anyone but from the tunnel vision that comes frpm working as a prosecutor in the same office for nearly forty years (which is how long she'll have been there when this contested next term ends). My sense is Charlie Baird will be more willing to try new things and move more aggressively to improve processes when errors happen, if only because he'll have no personal, institutional stakes in defending the status quo, a reflex which from time to time seems to stymie the incumbent.

This is one of several issues that to me clearly delineates the candidates and makes me come down on the side of Judge Baird. Every politician has flaws and like Craig Watkins in Dallas, I won't agree with him on every issue. But Judge Baird would enter the job unfettered by decades of institutional baggage that IMO  limits the incumbent's vision, not to mention possessing a more profound appreciation for the implications of DNA exonerations for the prosecutorial profession. I don't know if Democratic primary voters will understand that distinction, but to me it's an important one.

Central Texas races hinge on public perception of prosecutorial influence

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

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

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

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

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

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

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

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

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

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

Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?

Here's your chance to play oddsmaker.

A judge in Denton County says two prosecutors withheld evidence and committed prosecutorial misconduct, banning the pair from his courtroom for the offense. Reported the Denton Record-Chronicle ("Two banned from Burgess' court," April 7):

A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don’t have “the innate intellect of a fifth-grader.”

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess’ March 2 ruling that they willfully withheld exculpatory evidence from the defense — evidence that would have helped in his defense — Schultz was moved to the district attorney’s civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather  counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.

The prosecutors did not inform defense counsel that their star eyewitness had not, as earlier represented, positively identified the defendant, her husband, instead referring to the suspect as "he or she" and declaring she never saw a face.

The Record-Chronicle adds that the situation - though not a formal grievance - has been forwarded to the state bar:

Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against [prosecutors Bill] Schultz and [Forrest] Beadle. He defended their actions, stating that they did not intentionally withhold evidence.

If the conclusion of the Record-Chronicle account accurately portrays it, Judge Burgess sounds furious over the incident:

In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

“My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did,” Burgess said in his ruling. “I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don’t particularly like his answers, but he at least was honest.”

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another “[expletive] Brady motion.”

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

“And how disingenuous it is to get up here and testify that you don’t think that it’s Brady that the victim can’t identify by face or by anything other than smell and a boot who the attacker is ... ,” he said. “I’m going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They’re not allowed to appear in this courtroom until I rule otherwise.”

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

“A woman that was knifed nine times in the gut and elsewhere doesn’t get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader,” the judge said.

See the rest of the Record-Chronicle story for more detail.

My question: Given that the only prosecutor in memory publicly sanctioned by the state bar was Terry McEachern from the infamous Tulia drug stings - and that a recent survey of prosecutor misconduct findings by Texas appellate courts found no examples resulting in public state bar discipline - what are the odds the state bar publicly sanctions either or both of these prosecutors?

For my part, even if every jot and tittle of the judge's criticism is accurate, I couldn't go higher than 5% and would have a hard time justifying that number. Terry McEachern was disciplined because in that one case lightning struck, national and even international media honed in on the tiny South Plains community, and the activities he'd concealed of his undercover officer, Tom Coleman, were too well documented to ignore (largely thanks to mi amigos Nate Blakeslee and Jeff Blackburn, to give credit where it's due). So much attention had been drawn to the case IMO that the state bar disciplinary committee felt they would discredit themselves if they didn't act. But the system shouldn't require the case to be the subject of a 60 Minutes segment or a BBC documentary before the state bar mandarins decide to rein in rogue prosecutors. As a starting point, when judges tell them prosecutorial misconduct is going on in their courtroom and the elected DA's response is to move alleged Brady violator to another court, that should send up enough red flags to warrant a fuller investigation, even if the prosecutors' boss didn't submit a formal grievance.

Why I hate PolitiFact, DA campaign edition

Grits has alluded before that I'm no fan of the PolitiFact reporting model or others who parse public statements - often in the most narrow, out-of-context fashion - to pass judgment whether it's "truth." Two analyses of campaign statements by Travis County DA candidates Rosemary Lehmberg and Charlie Baird demonstrate why. Both comments were labeled by PolitiFact "mostly false," but that bottom-line, two-word assessment fails to acknowledge the more important, underlying truths that place the discussions in context beyond the strained, myopic lens of the "Truth-O-Meter."

My main beef with PolitiFact, and I'm not the first to say so: The truth is usually more complex than a "Truth-O-Meter" can capture.

Take PolitiFact's analysis of DA Rosemary Lehmberg's statement that "I’ve created the first felony deferred prosecution program for nonviolent first-offenders, and it gives them a chance to stay out of the system with a clean record." Grits has joined criticisms that the program mostly benefits better off defendants, but to me saying her campaign statement was "mostly false" oversimplifies matters and fails to give Lehmberg adequate credit. Certainly she was the first DA among her peers in larger counties to do so. More to the point, she didn't know of the other two. In fact, neither did the state prosecutors association, with whom she doublechecked before making the claim publicly. That she'd fact-checked the claim deserves credit, and the fact that the other two programs weren't widely publicized (e.g., I can find no reference to them in past Grits posts) means she likely didn't base the Travis County program on them in any way, shape or form.

Rose's claim spawned research in response that broadened what we know about these programs, but it'd be wrong to say she made a "false" statement. Her office was on the front end of the curve and she implemented the Travis program of her own accord, not modeling it on the other programs mentioned. The important stuff about her statement, in other words, was "true" from her perspective and more importantly Travis County voters'. The Truth-O-Meter grants this obliquely by calling the statement "mostly" false, but the "mostly" conceals more truth than the "false" part of the assessment illuminates.

Similarly, PolitiFact labels "Mostly false" the statement by challenger Judge Charlie Baird who said that "We've had the same leadership in the Travis County DA's office for 30 years." The writer justifies this judgment because Lehmberg didn't ascend to a top leadership position in the DA's Office until 15 years before Ronnie Earle's departure, serving as his first assistant for the final 12 years.

Again, though, the "mostly" conceals more truth than the "false" part of the assessment reveals. PolitiFact does mention in passing the critical fact that Lehmberg "left private law practice to join the DA’s office in 1976. The entry continues: 'Rosemary began her career with the district attorney working with the Grand Jury and then as a trial attorney in the 167th District Court, presided over by Judge Tom Blackwell. She later became chief of that court and then the chief of the Trial Division. She has served as the chief of the Career Criminal, Major Crimes and Public Integrity Divisions.'"

Context is everything, and we may read between the lines that Lehmberg's political connections to Earle in the '70s likely helped land her in the DA's Office in the first place. After all, she quit her private practice in '76, before Earle took office in January 1977. It's not like she blindly answered a classified ad. So Lehmberg was one of the younger members of Earle's original group of attorneys brought on as he transitioned into the office, spent three decades with him, the last dozen as his first assistant, and ran for office as Earle's heir apparent, promising continuity and a continuation of the former DA's most politically popular initiatives. From voters' perspective, she represents the status quo, an acquiescence in the idea that the Travis DA's Office will be run more or less the same way it's been run for decades, perhaps ad infinitum. (If Lehmberg wins, she'll likely run unopposed thereafter in Dem primaries for the foreseeable future.)

The underlying truth behind Baird's statement is the main reason his campaign has gained traction despite the many naysayers, and indeed is the reason I favor Baird in the race, though I respect both candidates. Because he won't feel compelled to defend the office's legacy back to the '70s, my hope is that the reform-minded Baird will be more likely to try new things and less likely to perceive new ideas defensively or as a criticism of "how we've always done it."

My own election preference aside, though, these examples to me show the shortcomings of PolitiFact's reductionist, all or nothing approach. "Facts" are relatively easy to check. "Truth," which requires their interpretation, is often in the eye of the beholder.

Fact checking is a laudable endeavor, but it's not necessarily the same thing as "truth telling."

Challenger surging in hotly contested Williamson County DA's race

Grits has no firsthand knowledge of Williamson County District Attorney race, but judging from endorsements and fundraising, incumbent John Bradley appears to be on the ropes in his primary battle against insurgent challenger and current County Attorney Jana Duty. The headline in today's Statesman story on the race calls it "unparalleled in intensity," declaring the race more heated than any election in living memory according to Williamson courthouse watchers.

Police unions remarkably began to line up against Bradley after he had to retract ill-informed, ham-handed comments about civil service at the Cedar Park PD. He said a difference between him and Duty was he opposed them getting it, but Cedar Park voters had already authorized it. (Ironically, this is an issue where my views jibe more closely with Bradley's than the unions'; his ignorance of basic facts, IMO, is a greater indictment of a candidate than the politically incorrect view he expressed criticizing civil service.) In any event, the array of law enforcement interests stepping up to endorse Ms. Duty over the incumbent has grown quite impressive.

Source: janaduty.com.

The challenger has proven to be a diligent fundraiser and has a substantial lead in that regard, though neither candidate appears to be raising TV money so far, which must be spent in the relatively expensive Austin market:

Duty said in February that she had raised about $113,000, but she has declined to say how much she has raised since.

Duty has a history of successful fundraising. When she ran against an opponent in the 2004 primary, she raised about $47,000, winning with 63 percent of the vote.

By comparison, Bradley raised more than $27,000 for his 2002 primary battle, according to campaign finance reports.

Bradley said last week that he has about $68,000 and expects to raise an additional $10,000 to $20,000 by election day. Bradley has attacked Duty's fundraising, noting that it has come in part from her own staff and from loans to herself, but Duty said she has a broad base of supporters, including residents and attorneys who have left the Bradley camp.

The race is far from over and I'd still give the incumbent a 50/50 chance to remain in office, mainly because of incumbency advantages and because even Duty's greater fundraising totals appear too low to ensure voters all enter the polls understanding what's at stake. Even so, Bradley's reputation has been battered - in some cases thanks to vicissitudes of fate beyond his control, but in most cases as a result of his own missteps and misapplied ambitions - and he'll need more resources than he's projecting he'll have to pay for sufficient communication to overcome it.

The practical reason money matters in elections, and the reason it's often viewed in political and legal circles as almost a proxy for "speech," is that the MSM offers quite poor coverage of most elections, which are treated as in this story more as a horse race than a choice between public policy visions. Not only is campaign coverage poorly structured, it's also infrequent. We might see one more story featuring the race in the Statesman before election day, for example, but likely no more. Most information voters receive about candidates comes from paid advertising. When candidates in third-or-fourth tier races like this one can't afford campaign communication in sufficient volume to actually get voters' attention - be it direct mail, door hangers, radio and TV ads, etc. - voters go to the polls utterly ignorant, as opposed to mostly ignorant, which is a terrific contributor to high reelection rates among incumbents. (Voter attention confoundingly skews toward presidential, senate, congressional and legislative races much more than local contests.) So Duty's fundraising edge matters a great deal, and so does keeping and extending it as the end of the campaign nears. If she actually raised enough money to go on TV with an attack message or deliver several rounds of targeted direct mail, it could drive a stake into the heart of the incumbent. Unless Mr. Bradley somehow pulled a financial rabbit out of his hat, he simply wouldn't have resources to respond.

For those interested, here's Bradley's campaign website (he also has an active Facebook page) and challenger Jana Duty's campaign site.

Galveston DA drops politicized prosecution against blogger

The District Attorney in Galveston has dropped online bullying charges after a local blogger was arrested at his home last week for online criticisms of a city council candidate's spouse. This wasn't a spur of the moment charging error but a big, fat public flip flop on a politicized prosecution. "Clear Lake Shores interim police Chief Kenneth Cook said his office worked with the district attorney before charges were filed," reported the Galveston Daily News.

Prof. Jennifer Laurin previews forum on prosecutorial oversight

Tomorrow afternoon at the UT law school there will be a 2-hour panel discussion on prosecutorial oversight, part of a "national conversation" promoted by the national Innocence Project and the Veritas Initiative in the wake of the Supreme Court's Connick v. Thompson decision affirming that prosecutors have "absolute immunity" for on-the-job misconduct. Assistant Professor Jennifer Laurin will be moderating the event, and yesterday I got a chance to sit down with her to discuss the issues in this Grits for Breakfast podcast/interview. (See the transcript here.)

Laurin describes Connick v. Thompson in some detail, and explains why the subject merits such a "national conversation." She then gives a rundown of the heavy hitting lineup on the dais, and discusses broadly some of the possible approaches or potential "sites" for reform that could be considered. And we discuss Laurin's own writing on Connick v. Thompson, about which she recently authored a chapter in a manual on federal civil rights litigation. She's very knowledgeable and we could easily have spoken about the subject a lot longer (the interview runs a little over 20 minutes).

The event itself will be broadcast live online on this dedicated website for those who can't attend. Here's a copy of the press release:

Prosecutorial Oversight: A national dialogue in the wake of Connick v. Thompson

Thursday, March 29, 2012
1:30 to 3:30 PM
Francis Auditorium
University of Texas School of Law – Austin, Texas

Please join us for the Texas stop of a national tour to address the issue of prosecutorial oversight.  The Supreme Court’s recent decision in Connick v. Thompson rejected civil liability for Brady violations in lieu of what it took to be effective status quo mechanisms for training, supervising, and remediating prosecutorial disclosure issues. A discussion followed by Q&A will address existing oversight mechanisms in Texas, assess their adequacy, and explore possible avenues of reform.

Speakers include:

• Betty Blackwell – Attorney, former chair of the Texas Commission for Lawyer Discipline
• Jennifer Laurin (moderator) – Assistant Professor, University of Texas School of Law
• Jim Leitner  - First Assistant District Attorney, Harris County
• Michael Morton – Freed after 25 years in prison in Texas following DNA exoneration and revelation of concealed exculpatory evidence
• Hon. Bob Perkins (Ret.) – Former judge, 331st District Court, Travis County
• Professor Robert Schuwerk – Professor, University of Houston Law Center, author of leading treatise on Texas rules of professional conduct
• John Thompson – Founder and Director of Resurrection After Exoneration and Voices of Innocence and plaintiff in Thompson v. Connick, imprisoned in Louisiana for 18 years (14 on death row), freed after revelation of concealed exculpatory evidence
• Emily West – Research Director, The Innocence Project

Gitting tuffer on plea deals boosting McLennan County Jail costs

The changing of the guard at the McLennan DA's Office (Waco) in 2010 appears to have resulted in an overcrowded, over-budget county jail as the new District Attorney rejects more plea deals, forcing defendants to wait in jail longer, judging from a Waco Tribune Herald report this week ("McLennan County Sheriff out of money for prisoner overflow," March 21, behind paywall). The Sheriff has requested emergency funds for the jail, blaming "the rapid spending on an unexpected and prolonged increase in the county’s jail population." Reported the Trib:

[Sheriff's Captain Paul] Wash said when the sheriff’s office prepared its current budget last spring, the county on average was housing 30 to 40 inmates each day at Harwell.

But by the time the commissioners court approved the budget in August, the inmate population at the county jail started climbing. In the fall months, the sheriff’s office sent an average of 175 to 200 inmates to Harwell [a privately run facility where the county must pay by the head].

The county had 130 inmates at Harwell as of midnight Monday. Plemons said the county jail had only 28 vacant inmate beds.

The Sheriff's office couldn't give a definitive cause, citing classification issues (male/female, violent, non-violent) sometimes creating inefficient allocations. But Wash said the main problem is quantitatively more inmates housed at the jail, stemming either from "an increase in arrests made by law enforcement agencies throughout the county, or [else] fewer inmates are being offered or accepting plea deals, thus staying in jail longer while awaiting trial," the paper reported.

The data isn't available yet (to me, anyway) to tell for sure, but Grits believes DA decision making and policy changes are the more likely cause of extra inmates than increased arrests. After all, crime statewide has been declining and Waco is among the cities that saw a massive drop in traffic enforcement by local police in 2011, with municipal courts processing just under 14,000 traffic cases in 2011 compared to 19,582 in 2010. That's more than a 28% drop. Since so many arrests on other charges originate at traffic stops, it seems unlikely there were significantly more arrests in McLennan County in 2011 with traffic tickets down that much and overall crime trending downward. Indeed, just last year the same reporter was lamenting declining inmate numbers at the jail and exploring the cause of lower crime rates to explain them.

Instead, it's far more likely changes in plea bargaining stances by rookie DA Abel Reyna account for the biggest difference. There was a report just last month about  the DA's office implementing a strict policy on DWIs that caused Reyna's former law partner Damon Reed to predict rising costs for the county:

Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

Now we see it's not just court dockets clogged as a result of this and similar plea-bargain policies but also the county jail. If the DA is negotiating fewer plea deals with DWI (and presumably other classes of) defendants, no wonder the jail population is rising! Moreover, the timing of Waco's jail population rise coincides roughly with the new DA's changes in plea bargaining policies.

In fact, the McLennan DA's example is almost a case study of tuff-on-crime policies equating directly to getting tuff on the taxpayers, with little identifiable public safety benefit. Jails and criminal justice generally are behemoths in county budgets, and small policy changes can have big budget consequences. Whether county commissioners, reporters or for that matter McLennan County voters make the connection is another matter. But those who want to avoid county tax hikes should dislike Reyna's new plea policies based on budget considerations unless a stronger case can be made that increased pretrial detention boosts public safety. In most instances, certainly on routine DWIs, the cost-benefit analysis just isn't there to support it.

DA race highlights Travis diversion program populated mainly by better-off defendants

Grits is thankful for Travis County's contested DA primary if only because it means we get some actual journalism on otherwise obscure courthouse subjects when the challenger attacks the  incumbent, and vice versa. In that vein, Steven Kreytak at the Austin Statesman has a story today titled, "Blacks, poor underrepresented in Travis County second chance program," March 24) which opens:

Defendants who are black or unable to hire their own lawyers have been underrepresented in a Travis County district attorney's office program that gives select felony defendants a rare chance to escape their charges without a criminal record, according to an Austin American-Statesman analysis.

Travis County District Attorney Rosemary Lehmberg said she is concerned about the imbalance and hopes to further diversify participation in her pretrial diversion program, which she started in 2010, with more education for defense lawyers about it.

Lehmberg said she hopes to encourage defense lawyers to be on the lookout for clients who would qualify and succeed, especially African Americans.

But defense lawyers interviewed said they know about the program, and some believe that it's Lehmberg's rule that disqualifies anyone with a prior criminal record that has led to the dearth of participation by black defendants and people represented by court-appointed lawyers.

They said many defendants who require court-appointed lawyers often have a disqualifying criminal record.

This is coming up because District Judge and Democratic DA challenger Charlie Baird has made it an issue in the race:

The program has been criticized by former District Judge Charlie Baird, Lehmberg's challenger in the May Democratic primary for the county's top felony prosecutor position.

Baird called the entry requirements discriminatory, saying he does not believe that prosecutors are rejecting applications because of the race or ethnicity of defendants. He said he would allow defendants convicted of some misdemeanor crimes to participate and would expand the list of crimes considered for the program, although he said he is still developing specifics on his proposed new criteria.

Baird said he wants more people to get the chance to avoid a felony conviction, which can forever affect a person's ability to secure things such as loans, jobs and housing.

"The collateral consequences of a felony conviction are just devastating to an individual who is truly repentant, remorseful and who otherwise would live a good, solid, happy life supporting themselves and their family," he said.

The American-Statesman analysis comes after a review of court files, data from Lehmberg's office and data from the Travis County court administration office.

The analysis found that although African Americans made up about 32 percent of those arrested in Travis County on new felony charges during 2010 and 2011, they account for 9 percent of the 131 defendants who have been accepted into the pretrial diversion program since its creation in 2010.

About 73 percent of felony defendants in Travis County during the previous two years were found to be poor and given a court-appointed lawyer. About 11 percent of defendants accepted into the pretrial diversion program were represented by court-appointed lawyers.

Lehmberg said she has already taken some steps aimed at ensuring the program is fairly administered.

Late last year she added two trial court prosecutors — Monica Flores, a Latina, and Craig Moore, an African American — to the panel that decides who gets into the program. That panel had previously had three veteran white male supervisors in her office.

"I do not agree with (Baird) that the answer to this is to throw open the doors to the program to anybody," Lehmberg said. "This program is intended to provide an opportunity to nonaddicted defendants with no record who made a mistake and want to accept responsibility and go on with their lives."

I don't believe the reason the program has few black folks in it is that there weren't enough minority prosecutors in decision making slots. Instead, there's something about the criteria set by the DA - perhaps especially surrounding prior convictions or indigence - that's playing into those distinct ratios, something probably more related to class than race. When just 11% of defendants in the program have appointed counsel compared to 73% overall, that tells you there are barriers to entry that for the most part only the well-heeled are overcoming. Maybe the answer isn't to "open the doors ... to anybody," but perhaps it's worth considering cracking the door a bit wider to avoid such disparate outcomes.

Plea deals without open files turn off ignition on adversarial system's truth-seeking engine

An exchange between judge and defendant during a guilty plea out of Williamson County in a remarkable, 33-year old murder case caught Grits' attention.

Benny Tijerina was sentenced to concurrent 40 year sentences in Williamson and McLennan counties for the crimes, though he claims and a victim's mother agrees that another man was the shooter (the prosecutor claimed to have jailhouse informants who say otherwise). Anyway, as cold cases solved by DNA go, this was at once both a remarkable and increasingly a routine event.

What caught Grits' eye was an exchange recorded at the end of the Austin Statesman story: "After he was sentenced, Tijerina asked [Judge] Carnes why he hadn't been allowed to see any of the evidence against him in the case. Carnes said that was standard and that Tijerina would only have seen the evidence if the case had gone to trial."

That's true as far as it goes under the US Supreme Court's Brady v. Maryland ruling, but it's also a "standard" that shifts in Texas county by county at the whim of the local elected prosecutor. In Tarrant County, for example, defense attorneys have access to prosecutor files - electronically, no less - even in cases that result in plea agreements. In El Paso, too, DA Jaime Esparza told a conference at the Task Force on Indigent Defense that his office allows defense counsel to get access to case files within 24 hours, noting that it facilitated more routine cases getting disposed of within three days or less, reduced jail costs, overcrowding and liability, relieved court dockets, and even freed up space in the jail that's now leased out to house federal inmates and make extra money.

We live under a justice system where 98% of cases result in plea bargains instead of trials. Under the Williamson County rule, in the overwhelming majority of cases nobody outside the prosecutor's office ever actually vets the evidence before a sentence is dispensed. If the adversarial system is a truth seeking engine, in 98% of felony cases the engine's ignition switch remains locked in the "off" position under that "standard."

According to the Texas Office of Court Administration's annual report (pdf), "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010" in district (felony) courts. Just 3,633 felony cases in FY 2010 went to either jury or bench trials, says OCA. So in the overwhelming majority of cases, under the Williamson County system, the defense never sees the evidence.

I have no knowledge of the case beyond this report from the Statesman and don't argue with the sentence(s), but that exchange between defendant and judge about what is "standard" in Williamson County - and too many other Texas courtrooms - should raise alarm. The same sort of prosecutorial gamesmanship takes place in more routine cases all the way down to the misdemeanor level. Make Grits philosopher-king and I'd prefer that, as in El Paso and Tarrant, both sides had full access to the police investigation as early in the process as possible. Clearly some DAs - like Williamson's John Bradley - just won't do that unless they're required, so in the interests of justice the Legislature should make them.

Man jailed 83 days extra after McLennan DA fails to notify of dropped charges

Rookie McLennan County DA Abel Reyna is a man who, during his brief tenure as District Attorney in Waco, has shown himself unafraid to pick fights. First he wanted to buck the Legislature over complying with the state's updated DNA testing statute, delaying testing of potentially exonerating (or incriminating) evidence in the 30-year old Lake Waco murders case. Then he announced what amounts to his own, personal mandatory minimum on DWI deals, including big increases from prior practice in fine and fee amounts. But the longer the young DA remains in office, he'll discover that there isn't as much time to go out picking fights in a job where more than your fair of them come your way of their own accord. Most recently, reported the Waco Tribune Herald ("Waco man wrongly jailed for 83 days may sue county," Feb. 1, behind paywall).

A Waco man is deciding if he will sue the county because he was wrongfully detained for 83 days after the district attorney’s office declined his case for prosecution but failed to notify the McLennan County Jail.

Damion Wayne Evans, 33, stayed in the county jail with no other charges pending against him for almost three months after the district attorney’s office declined to prosecute him on a tampering with physical evidence charge.

District Attorney Abel Reyna said Evans’ improperly extended incarceration was the fault of his office. His staff did not fax a case disposition report to the sheriff’s office so it would know to release Evans.

Damion Evans was jailed for 83 days after the McLennan County district attorney’s office decided they would not prosecute his case.

“I will accept responsibility for the error in my office, and my apologies go to Mr. Evans,” Reyna said. “Though it doesn’t change what happened to him, the only thing I can do is work hard to make sure it doesn’t happen again.”

According to court records, Evans was arrested Oct. 12, 2011, after Waco police pulled him over and saw him chewing on something. The officers assumed he was eating drugs or items containing drugs, according to records filed in the case. But they did not take him to a hospital to empty the contents of his stomach.

A case disposition report dated Jan. 17 said prosecutors did not accept the case because without the object the suspect allegedly swallowed, they were “unable to prove what it was or that it was illegal.”

The decision to refuse the case was made Oct. 25, two weeks after Evans’ arrest. Once that decision was made, the disposition report should have been sent to the jail and Evans should have been released, Reyna said.

But the error was not discovered until Jan. 17, after Evans’ attorney, David Bass, filed a motion asking Judge Ralph Strother to set a bail Evans could afford because he had been in jail more than 90 days and had not been indicted.

Strother granted the motion, and it was not until after the hearing that officials discovered that Evans’ case had been refused Oct. 25.

What does "accept responsibility" mean in a world where prosecutors  have "absolute immunity" for harm caused by their errors? Do you think Mr.Reyna will be forced to "accept responsibility" in the same way you or I would? The DA refuses the case but fails to notify the defendant, his counsel, the jail, or anybody who might be in a position to get him released. 

The wag who notified me of this via email added that this is "another way to keep the McLennan County Jail full." That's a joke, but regular readers know maximizing the number of jail inmates is no small motivation for McLennan County officials at the moment.

McLennan DA implements 'one size fits all' DWI deals, but a deal takes two

In Waco, McLennan County DA and John-Bradley wannabe Abel Reyna has implemented a new policy for first-time DWI defendants that "prohibits DA assistants from negotiating plea deals and sets probationers up for failure with higher fines and related fees," according to a story forwarded to me by a reader by Tommy Witherspoon at the Waco Tribune Herald ("DA's DWI policy under fire from area attorneys," Feb. 19, behind paywall).

Remarkably, "The policy is so unpopular that attorney Damon Reed, Reyna’s former law partner, asked a judge last week to order the district attorney’s office into mediation with Reed’s 23-year-old DWI client because of Reed’s perception that the district attorney’s office won’t negotiate or treat defendants fairly." A judge denied the motion, but attorney Damon Reed, who is Reyna's former law partner, criticized new DA's approach as a "one size fits all" policy. Reported the Trib:

Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

“The point of it is so the district attorney can look like he is tough on crime and the judges will artificially appear that they are being soft on criminals if they take into consideration any of the circumstances of the individual in shaping justice for that individual.”

Reyna said he has set a standard offer of 15 months probation and $1,000 fines for those charged with their first DWI. Offers are higher if there are aggravating factors, such as an unusually high breath or blood-alcohol test, causing a wreck or being belligerent to the arresting officer.

The maximum penalty for a first-time DWI is two years in jail and a $2,000 fine.

Regular readers know, of course, those only include the criminal penalties. There is also a civil surcharge, which for DWI defendants can be quite high and have caused a decline in the DWI conviction rate statewide.

The issue is, at what point do penalties become so severe that defendants would prefer to just sit out their sentence in the county jail than agree to probation, which is what happened in Harris County when the previous DA, Chuck Rosenthal, tried to turn up the screws. And as attorneys in the story pointed out, a big part of the problem is expensive DWI "surcharges," as well as probation fees, costs for treatment, urinalysis, any required classes, etc.:

Reed and other attorneys say a typical DWI defendant placed on probation will incur fines, probation fees, state surcharges and possibly other charges that easily can total $500 or more a month.

“If I slap a poor man 20 times to get his attention, I guarantee you I had his attention after the first time,” Waco attorney Mike Roberts said. “If I give him a fine he can’t pay, it is not in the best interest of justice because he is not going to be able to pay it, you are setting him up to fail and the taxpayers will have to pay to keep him in jail and to pay for more jury trials. It is nothing more than political posturing.”

Will defendants in McLennan County pay through the nose, or will this result in clogged dockets, demands for trials, or even pleas to jail sentences? I suppose, looking at it through the prism of local politics, at least that last option would provide some extra bed days for these guys, which a cynic might imagine could even be the point.

Challenger doubles John Bradley's fundraising as rivals slug it out for Williamson DA

A pair of local news stories update us on the status of the Williamson County DA's race, where challenger Jana Duty has more than doubled incumbent John Bradley's fundraising total. The story this morning by  the Austin Statesman's Claire Osborn opens:

In the Republican primary campaign for district attorney, Williamson County Attorney Jana Duty had raised more than twice as much money as her opponent, incumbent John Bradley, according to the most recent campaign finance reports.

Duty raised $83,211.09, and Bradley raised $38,604.06, according to campaign finance records filed at the end of December with the Texas Ethics Commission. Duty said last week that she has since raised $30,000. Bradley said he has raised $20,000 since the beginning of January and expects to raise another $20,000.

Osborn points to Duty's successfully luring even self-described friends of Mr. Bradley like Austin attorney Roy Minton into her camp:

Austin criminal defense lawyer Roy Minton said Bradley is a longtime friend but that he is supporting Duty in this campaign.

"I believe that John has not shown the concern that I would like to see prosecutors have for young people that get into difficulties and need to be rehabilitated and continue in society without carrying with them a conviction or penitentiary time," Minton said.

Minton contributed to Bradley's 2002 campaign, campaign records show. Filings from July show that Minton's law firm also contributed $500 to Bradley's current campaign. Minton gave $500 to Duty's campaign, reports show.

Duty supporter Mark Brunner previously worked as an assistant district attorney under Bradley and is now a criminal defense lawyer in Georgetown. Brunner said he trusts Duty and said she "fosters a sense of a search for the truth."

Some criminal defense attorneys have said prosecutors under Bradley had offered defendants one-day deadlines for deals in their cases rather than allowing defense attorneys access to evidence, such as videos, that would help them make a decision for their clients.

Access to case files has become easier for defense attorneys since the Michael Morton case, Brunner said. Bradley did not prosecute the case but refused for six years to allow DNA testing on a piece of evidence for Morton, who was wrongfully convicted of the death of his wife, Christine Morton. Morton spent 25 years in jail before he was released in the fall; another man recently was charged in connection with Christine Morton's death.

Conversely, Your News Now Austin has an interview with John Bradley by Alana Rocha in which the incumbent takes his best shots at the challenger (and pretends his Forensic Science Commission nomination was shot down by "liberal Democrats" when Republicans drove the nails in the coffin). My own, admittedly biased estimation is that Jana Duty's much-ballyhooed troubles with the state bar - which largely stem from competing criminal and civil roles of the County Attorney's office - don't rise to the level of concern as John Bradley's politicized stewardship as DA, including but not limited to his aggressive opposition to possible innocence claims. Williamson County voters in the GOP primary, of course, must make their own judgment.

Fundraising is a tell-tale metric in politics, however, and usually the most reliable indicator after polling as a predictor of who will win an election. So for a challenger to "lap" the incumbent, as the Statesman headline writer put it, even an impartial observer (and Grits won't pretend impartiality) would have to conclude that John Bradley appears to be on the ropes, with most of the momentum so far on Jana Duty's side.

Still, even if both campaigns meet their fundraising projections, we're not talking about a lot of money given Austin-market TV prices, so much depends on a) how effectively the campaigns spend what they have, b) the few, limited remaining opportunities for earned media (Bradley may need some to alter his downward spiral), and c) whether Bradley's local establishment allies decide to hang him out to dry. I don't  know who benefits more from the likely postponement of the primary date: Normally I'd say the challenger, but it may be Mr.Bradley. Judging by the campaign's fundraising totals and projections, he may need some luck and all the time he can get to turn things around.

No indictments from Houston BAT van probe

A grand jury investigating misconduct at the Harris County District Attorney's Office declined to issue indictments, but put out a stinging public statement critical of the DA's Office's handling of the affair. Reports Brian Rogers at the Houston Chronicle:

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney's office and the Houston Police Department's DWI testing vehicles with a blistering report, but no indictments.

"There was no evidence of a crime," said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA's office for "unexpected resistance" and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

"The stain upon the HCDAO will remain regardless of any media statements issued or press conferences issued by anyone," according to the statement.

Certainly, the spectacle of a prosecutor taking the 5th Amendment to avoid testifying was an almost absurdist display, and Grits cannot recall another DA called to testify before a grand jury in the fashion that occurred here. I'm not sure what if anything has been resolved, or what conclusions to draw. I'll look forward to reading a copy of the grand jury's report.

MORE: Big Jolly, who sees this as vindication for Pat Lykos, has posted the grand jury statement and Lykos' official  response. Lykos portrays the grand jury proceedings as a witch hunt by her political enemies, and there is something to that assessment. But I also think the DA's Office and especially Houston PD bear responsibility in the matter. One of Lykos' prosecutors, Rachel Palmer, notoriously took the 5th (the right against self-incrimination) instead of testifying about activities performed on the job. That's a highly unusual development, and it's hard not to wonder if the outcome of the investigation might have been different if the ADA had testified. Lykos likely deflated the matter as a campaign issue, though, by testifying herself.

The DA's public statement declares, "Despite repeated public insinuations to the contrary, there was no criminal conduct in the operation of HPD BAT vans, nor was  there suppression of evidence." "No criminal conduct" I'll accept, but the truth is Houston PD knew about problems with BAT vans in fall 2010 when the issues were raised by their own analysts, two of whom later resigned rather than participate in flawed forensics. It was only after defense attorneys found those ex-analysts and brought one of them to court that anyone in officialdom publicly acknowledged potential problems with BAT vans' accuracy. So while this may be the end of the runaway grand jury story (and HPD BAT vans generally, which are being phased out later this year), your correspondent sees little vindication for anyone coming from this episode, just an enormous politicized mess that pretty much tarnished everyone remotely associated with the process.

AND MORE: From Mark Bennett, who thinks the DA's Office may have improperly used a secure database in violation of federal law.

Audits of asset forfeiture funds yield questions, felony conviction of Brooks/Jim Wells DA

Joe Frank Garza, the former DA of Brooks and Jim Wells counties, which slice through rural South Texas along US 281, gave his first interview since his conviction last year for misappropriation of public funds to Mark Collette of the Corpus Christi Caller-Times ("As new questions emerge, former District Attorney Garza speaks about forfeiture funds," Jan. 22). Here's a notable excerpt from the article:

From 2002 to 2008, [Garza] used the funds for himself and to supplement employee salaries without approval. An audit showed more than $4.2 million went to salary supplements for Garza and at least three of his employees, and trips to casinos. Three secretaries received more than $1 million during a five-year period — or more than $66,000 per secretary per year, effectively doubling or tripling their pay. Garza said the secretaries deserved it.

As part of the plea deal, Garza was sentenced to 10 years in prison, which was suspended for 10 years probation. Garza spent six months in jail as a condition of probation and was forced to surrender his law license. He also was ordered to pay $2.16 million in restitution and a $10,000 fine.

State law requires custodians of forfeiture funds to submit detailed budgets outlining how they intend to use the money. Garza said he didn't understand the budget requirement because the statute was "so confusing."
In 2001 the statute contained the same requirement it has today for district attorneys: "The budget must be detailed and clearly list and define the categories of expenditures."

Garza said the law, which allows district attorneys to used seized funds for official purposes, lets the district attorney determine what qualifies as an official purpose. He claimed he asked state officials in 2000 whether there were limitations on how he could use the money and was told, "You can spend it for whatever, so long as you don't put it in your wallet."

He said he received advice from a county auditor and county judge who told him he didn't need to submit budgets for forfeiture fund expenditures.

The state's prosecutors didn't buy it.

"He knew better," Assistant Attorney General Shane Attaway said when Garza took the plea deal. "This is pure greed. This isn't an accident."

Garza complained that the audit of his funds and subsequent prosecution were politically motivated. 

Meanwhile, Collette reported yesterday in a separate item ("Former Brooks County Sheriff under investigation for use of seized cash"), the former Brooks County Sheriff has his own asset-forfeiture related woes, reports Collette:

An auditor found more than $500,000 in questionable purchases through former Brooks County Sheriff Balde Lozano's criminal asset forfeiture funds, prompting a local prosecutor to refer the matter to the Texas Attorney General's office.

According to the audit, some of the purchases were channeled through funds controlled by Joe Frank Garza, the former 79th District Attorney who pleaded guilty in March to a felony charge for paying himself and his employees more than $2 million from his office's forfeiture fund without county commissioners' approval.

Lozano, 59, who is now a Falfurrias police officer, was sheriff from 1997 through 2009. He did not accept requests for an interview but provided a written statement saying the audit was politically motivated.

"I have been out of politics for the last three years," Lozano wrote. "It seems like the present sheriff's administration continues to try to drag me back into it."

Indeed, Lozano shouldn't spend too much time wondering why he's being dragged back into it! Reports Collette, "State law requires sheriffs, district attorneys and other officials who oversee seizure funds to submit forms yearly to the state comptroller and Texas attorney general detailing the money and seized property flowing through the funds and listing how much money was spent in various categories, such as salaries, equipment and travel expenses. There is no record of Lozano submitting the paperwork during his 12 years in office." Whoops.

Further, wrote Collette, "The county has no record of any budgets submitted by Lozano. The audit reports that when a county auditor raised objections about the sheriff's spending, Lozano and Garza replied with statements such as 'the sheriff can do whatever he wants with his money.'" Big ticket item to be accounted for include $88K in credit card purchases which appear mostly unrelated to law enforcement. Also, "About $394,000 was spent to buy 18 vehicles, apparently without competitive purchasing procedures. The auditor had difficulty tracking what happened to the vehicles and whether the county received money when they were sold." (Here's a copy of the October 2011 audit (pdf) of the Sheriff's asset forfeiture fund.)

So the former DA in Brooks and Jim Wells counties pled guilty to a first-degree felony for overpaying himself and his staff with asset-forfeiture money, but thinks he did nothing wrong. Meanwhile, the ex-Brooks County Sheriff treated asset forfeiture money as his own private slush fund with little accountability. One wonders what similar audits would find in other jurisdictions? Are these examples outliers or would similar self dealing and/or misappropriations be discovered elsewhere, if anyone bothered to look?

MORE: From Texas Watchdog.

Williamson County prosecutors playing defense

Williamson County District Judge Ken Anderson, reports Chuck Lindell at the Austin Statesman, filed a brief with the court which "accused [exoneree Michael] Morton's lawyers of employing falsehoods, incomplete facts and an incorrect reading of trial records to accuse Anderson of hiding evidence that could have spared Morton from a receiving a life sentence for a crime he did not commit." See Anderson’s brief here (pdf) and accompanying exhibits here (pdf).

Meanwhile Williamson County DA John Bradley is reportedly out blockwalking for his campaign, just as Wilco Watchdog has discovered the internet treasure trove that is the incumbent's collection of 7,500+ posts at the Texas District and County Attorneys Association's user forum, posting a comparison of Bradley's public media statements about disclosing exculpatory evidence with his running commentary among friends on the TDCAA site. My favorite bit: In a brilliant moment of understatement, one forum user responded to Bradley's authoritative disdain for handing over exculpatory evidence with the observation, “The contention that there is no constitutional obligation to turn over exculpatory evidence when the defendant pleads guilty seems highly dubious.” Dubious, indeed! Regrettably, the blogger doesn't provide permalinks for the quotes, though I'd read most or all of it before. See the full Watchdog post for more.

For those who haven't seen it, if you're a regular Grits reader and are interested in the topics this blog covers, I encourage reading the TDCAA forum purely for its entertainment value, as evidenced by the quotes pulled out by the Watchdog. (Their site appears to be inexplicably down, hopefully not in order to expunge years of dialogue as a result of the Watchdog's post!) A lot of interesting discussions happen at the TDCAA user forum on subjects I don't see addressed anywhere else, for good and sometimes for ill. One caveat: Before ever quoting the forum, as the Watchdog did, always get a screen shot or cut and paste the string into a separate document. Mr. Bradley in particular, but other forum participants, too, have been known to change or delete comments when they were cited in the media.

The primary battle for Williamson County DA this year is shaping up to be a real hoot!

See related Grits posts:

• As predicted: State bar dismisses grievance against John Bradley from Morton case
• Justice and Prosecutorial Misconduct
• Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration
• Roundup: Coverage of prosecutorial misconduct in the Michael Morton case
• Holding judges accountable for past misconduct: William Adams and Ken Anderson
• Roundup of Williamson County prosecutorial misconduct fiasco
• On the road to Damascus: The conversion of John Bradley
• Editorials: Weak state bar has failed in oversight role on prosecutor misconduct
• Bradley, Anderson engaged in 'heated discussion' after Michael Morton exoneration
• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• Stare bar will investigate prosecutor misconduct in Michael Morton case
• Unable to squelch prosecutor misconduct allegations, John Bradley passes them off to AG
• John Bradley tries to short-circuit investigation into prosecutor misconduct in Michael Morton case
• John Bradley facing local, national criticism now that Michael Morton formally exonerated
• State Bar should sanction prosecutor from Michael Morton case but almost certainly won't

On texting, driving, fact checking, murder rates, borderline competency and global security

A few, disparate tidbits:

Houston 2011 murder rate nearly as low as Mexico City
The murder rate in Houston is at its lowest since 1965,  (and nearly the lowest since data began to be recorded), with 198 murders last year compared to a high of 701 in 1981, reported KUHF radio. Still, the murder rate of 9.4 per 100,000 is substantially higher than the statewide murder rate of 5.0 in 2010, according to DPS data (pdf). To put that number into perspective, Mexico City's murder rate is 8.3 per 100,000, so in that light 9.4 perhaps isn't exactly being all you can be. Still, Less Murders = Good. MORE: From Kuff.

After death, inquiry finds most youth at Granbury juvie detention in isolation for unjustified reasons
Now that the new Texas Juvenile Justice Department is up and running, there's no time to lose in exercising its oversight function. Reports the Weatherford Democrat, "A state investigation of the Granbury Regional Juvenile Justice Center following the death of a 14-year-old Cleburne boy in October has raised questions about the role of the facility’s non-compliance with detention facility standards in the boy’s death." Said the paper, a TJJD "report released last week found several violations related to keeping the juveniles in isolation nearly all day on Oct. 10 outside of the physical presence of a juvenile supervision officer. The 11 residents of 'Alpha Pod' were kept locked in their rooms most of the day, not allowed to participate in educational and other activities as required and left without the supervision level required during daytime program hours, the TJJD investigation found." Further, "Investigators found that only one of the 11 residents of 'Alpha Pod' was 'confined for a reason justified by standards, namely the resident’s disciplinary seclusion status.'" In other words, 10 of the 11 kids in isolation at the time of the boys death shouldn't have even been there.

Borderline competency: Good question, no easy answers
Asks a prosecutor on the DA Association user forum, "What do you do with those VERY low functioning defendants who are already receiving services from MHMR and whose competency is borderline?... Seems they are getting more plentiful." While one wag replied, "Send them off to law school?," others including John Bradley noted there are no easy answers, particularly in the wake of budget cuts to mental health services in the most recent legislative session.

Constable resigns in lieu of prosecution
The DA in Lubbock won't pursue criminal charges against a local constable in exchange for his resignation and lifetime ban from serving as a peace officer.

H-Town burglar alarm fees don't pay for city services
In Houston, according to HPD's website, "The cost of responding to alarm calls for service in FY2007 was approximately $11.8 million dollars and exceeded the City's total annual revenues in that fiscal year ($7.99 million dollars) derived from permit fees and penalties associated with burglar, panic, holdup and similar alarm systems."

Balko: Anger vs. Lykos stems from 'efforts to change the culture'
Radley Balko suggests that in the Harris County District Attorney primary, "intra-party anger seems to stem mostly from [Pat Lykos'] efforts to change the culture in the Harris County DA’s office." Exactly. There's an odd nostalgia among her most ardent critics which Grits suspects can never be satisfied. It's a new century, and whatever happens in April or November, Johnny Holmes won't be walking through the door anytime soon.

Problem with texting while driving is the driving, not the texting
Fascinating. Fewer teens are driving and studies say cars are no longer the status symbol of freedom that they once were among young Americans, particularly in cities. Texting while driving is bad, argues Lisa Hymas at Grist, but more importantly, "we need to work urgently on making driving less necessary in the first place." Great line from Clive Thompson at Wired: "When we worry about driving and texting, we assume that the most important thing the person is doing is piloting the car. But what if the most important thing they're doing is texting? How do we free them up so they can text without needing to worry about driving?" How's that for reframing the question? I'm still rather amazed that Gov. Perry vetoed the texting while driving ban passed in Texas this year.

Iran, Pakistan, Mexico, None-Of-The-Above: Which is biggest threat to world stability?
This is nuts to me: From any rational American perspective - certainly for those of us living in border states - the biggest threat to stability in 2012 isn't Iran, surely it's from drug violence and instability in Mexico and Latin America, arguably followed by anti-western sentiment in already-nuclear Pakistan, where our troops are entrenched across the border for the foreseeable future. In Grits' book, I'd put high food prices (at least) third on the list. Why downplay instability in a nation that already has nukes, much less massive corruption and bloodshed on the US southern border, to proclaim Iran the ultimate threat? That's the sort of demagoguery that makes people vote for Ron Paul. Which is more dangerous for world security: A nuclear Iran or a starving Africa?

Fact check this
Greg Marx at the Columbia Journalism Review has an essay articulating numerous criticisms which have been gelling in Grits' own mind in recent months about so-called "fact checking" services like Politifact and the limits of the framework under which they operate, particularly regarding legal issues. I finished his piece and thought, "Damn, I wish I'd written that," which of course is the highest compliment one writer can pay to another. My biggest frustration with Politifact, et. al.: Grits despises the notion that fact checking should be somehow considered specialty work among journalists, implying that most journalists are mere mouthpieces for special interests who don't provide a significant truth filter between their sources and the public. That may be accurate as a practical, workaday matter, but it's not a model to aspire to.

On preconviction shaming and the role of the prosecutor

Fort Worth criminal defense attorney Richard Henderson authored a response in the Star-Telegram to the Tarrant County District Attorney Joe Shannon and assistant DA Richard Alpert, who held a splashy press conference last week announcing a new policy of publishing DWI defendants' names on their website as a shaming tactic (discussed here on Grits). Wrote Henderson:

I would support a joint effort by the DA and the defense bar to prevent DWI, so long as it does not include the publishing of names on the DA's website.

The Texas Disciplinary Rules for lawyers specifically state that a lawyer is not supposed to seek publicity to gain an advantage in a proceeding.

Prosecutors have their own special rule stating this. They are to seek justice, not merely be advocates and seek convictions.

Alpert has stated that merely publishing the names is not a comment on the case for giving evidentiary details.

This contradicts what Alpert states on the website:

"Over the years, we have tried to make it clear to the public that during a 'no refusal weekend' there will be no way to hide the evidence of their intoxication. This year we are adding the promise that they also won't be able to keep their charges a secret."

Such rhetoric goes beyond merely publishing the names. The direct implication of having the name of a person charged with DWI on the DA's website is that the person is guilty.

All people are presumed innocent until found guilty in court. A police officer's finding of probable cause for DWI is not legal proof, yet that is all that is required for a DWI arrest.

Potential jurors will have access to the DA's website and the names of persons accused of DWI.

I think Shannon and Alpert mean well, but they need to rethink this policy and remember their role in the system.

RELATED: Does preconviction shaming deter DWI or just obliterate the presumption of innocence?

As predicted: State bar dismisses grievance against John Bradley from Morton case

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton's false conviction, a development the Austin Statesman reported today. Except ... oh yeah ... Grits predicted earlier the state bar "almost certainly" wouldn't do anything. As pointed out then, "The State Bar didn't even discipline a [former] DA or judge from Collin County after the prosecutor admitted in a deposition they'd been sleeping together during a capital murder trial." If that won't get a prosecutor sanctioned, how could one expect action stemming from the Michael Morton exoneration?

I'm not a lawyer, but to me Bradley calling in all the prosecutors involved for a meeting to review evidence before their depositions (unbeknownst at the time to Morton's attorneys) struck me as straight up evidence tampering, giving the alleged perpetrators an opportunity to get on the same page and get their story straight while muddying independent recollections. The state bar, though, apparently said that was okay by them.

Granted, the complaint against Judge Ken Anderson may be stronger on the merits, if potentially hindered by a statute of limitations, but Bradley's politically convenient, belated, and half-hearted mea culpa doesn't mitigate the fact that he fought for years to keep Judge Anderson's misconduct from being exposed, mocking Mr. Morton's innocence claims while obstructing every possible avenue for proving them. If that wasn't technically unethical according to state bar rules, it certainly was heartless and fundamentally antithetical to the prosecutor's oath to seek justice, not convictions.

Examples like this have convinced your correspondent that the Legislature must find some way to beef up sanctions for prosecutorial misconduct and/or implement preventive procedures, e.g., mandating open prosecution files. The courts won't do it, and it's wholly evident the legal profession is incapable of policing itself on questions of prosecutorial misconduct.

See related Grits posts:

• Justice and Prosecutorial Misconduct
• Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration
• Roundup: Coverage of prosecutorial misconduct in the Michael Morton case
• Holding judges accountable for past misconduct: William Adams and Ken Anderson
• Roundup of Williamson County prosecutorial misconduct fiasco
• On the road to Damascus: The conversion of John Bradley
• Editorials: Weak state bar has failed in oversight role on prosecutor misconduct
• Bradley, Anderson engaged in 'heated discussion' after Michael Morton exoneration
• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• Stare bar will investigate prosecutor misconduct in Michael Morton case
• Unable to squelch prosecutor misconduct allegations, John Bradley passes them off to AG
• John Bradley tries to short-circuit investigation into prosecutor misconduct in Michael Morton case
• John Bradley facing local, national criticism now that Michael Morton formally exonerated
• State Bar should sanction prosecutor from Michael Morton case but almost certainly won't

 And more generally on the subject of prosecutorial misconduct:

• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?

See also the report (pdf) by Morton's attorneys on proseuctorial misconduct in the case and a deposition (pdf) of Bradley former appellate chief who worked on the Morton case, current Williamson County Court at Law Judge Doug Arnold.

MORE: From Simple Justice where, reacting to this case, Scott Greenfield accused the Texas state bar and Supreme Court Justice Clarence Thomas of "horseradish vision."