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.

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.

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.

Louis Sturns to oversee Michael Morton 'court of inquiry' over alleged prosecutor misconduct

Gerry Goldstein, Michael Morton, John Raley and Barry Scheck, via AP

Last week, Texas Supreme Court Justice Wallace Jefferson named the judge in the Micheal Morton "court of inquiry" - fellow black Republican state District Judge Louis Sturns of Tarrant County. (Bob Ray Sanders at the Startlegram provides background, for those who need it.) A defense attorney who's practiced a great deal under Sturns told me he's the "nicest guy you'd ever want to meet," though that doesn't mean he won't also hand down extremely long sentences. Most folks seem to think he will be fair, which is all one can ask. See AP's acccount, and Brandi Grissom's coverage. If you're really interested and have the stomach for it, here's the 140+ page report (pdf) that convinced Chief Justice Jefferson to appoint a judge to oversee these unusual proceedings. Fittingly, his decision comes days after the silver (25th) anniversary of Morton's false conviction, a coincidence whose force is heightened by the protagonist's silver hair and beatific camera visage. In most pictures I see of Michael Morton he has a big grin on his face, like the cat who just ate the canary. In the one above he shows no teeth, but his eyes are smiling.

Courts of inquiry are strange birds - a seldom used, Texas specific vehicle for making an end-run around the DA's office to seek an indictment for alleged criminal wrongdoing without ever having the case heard by a grand jury. Lately, attorneys like my boss Jeff Blackburn from the Innocence Project of Texas (Timothy Cole) and Barry Scheck of the national Innocence Project (Todd Willingham) have sought (with 50-50 success) to use the procedure as a truth-seeking vehicle in posthumous innocence cases. Now Raley, Scheck and Co, hope to  use it to punish prosecutorial misonduct. These are mostly uncharted legal waters  for all involved, both for the attorneys and Judge Sturns.

What a dramatic hearing that will be! Grits may have to drive up to Cowtown for that one.

Read more here: http://www.star-telegram.com/2012/02/21/3752088/important-move-forward-on-holding.html#storylink=cpy

Judge: State mental hospitals must take incompetent inmates within 21 days

Big news for mentally ill defendants in Texas declared incompetent to stand trial, not to mention the state agency that is supposed to provide "competency restoration" services, which presently has a months-long waiting list. After a court ruling this week, such long delays have been deemed unconstitutional and state mental hospitals have been ordered to begin taking inmates within 21 days after they've been declared incompetent. Reports Andrea Ball at the Austin Statesman ("Judge: Mentally incompetent inmates being kept in jail too long," Jan. 26):

Texas routinely violates the constitutional rights of mentally incompetent prisoners by forcing them to stay in jail for up to six months before moving them to psychiatric hospitals, a Travis County judge ruled this week.

State District Judge Orlinda Naranjo ruled that the Department of State Health Services must start moving "forensic commitments" — people accused of crimes who have been ruled incompetent to stand trial because of mental illness — to state psychiatric hospitals within 21 days of receiving a judge's order. Over the past two years , the average prisoner spent six months in jail waiting for a hospital bed, the ruling states.

"Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time violates the incompetent detainees' due process rights as guaranteed by the Texas Constitution," Naranjo wrote.

A final order that would specifically lay out how the health department should proceed has not been issued, said Tom Kelley , spokesman for the attorney general's office. That agency has not decided whether it will appeal the case. Right now, there is no timetable for when the changes might be instituted.

 I contacted the attorney in the case from the group Disability Rights Texas, Beth Mitchell, who forwarded a copy of Judge Naranjo's ruling (uploaded here on Google Documents).

The lawsuit is aimed at the Commissioner of the Department of State Health Services, and while everyone thinks it'd be a good idea to reduce waiting times, the decision raises as many questions as it answers. The state cut state hospital funding and other mental health services this year, so seeking more resources in the near term will be like squeezing blood from a stone. Meanwhile, the average waiting list for beds in 2011 was about 300 people, wrote Judge Naranjo, with about 800 beds designated for "forensic" use.

How will DSHS comply with this ruling or will they balk and appeal? If they comply, will they contract for beds, and if so where, and with what money? Will they shift more beds to forensic purposes, and if so what impact will that have on other severely mentally ill folks with civil commitments (69% of state hospital patients, says the ruling)? Will the Legislative Budget Board authorize extra interim expenditures - as they did for the $5 million per month extra being spent on TDCJ healthcare - or will they let the system limp along, noncompliant, until the 2013 session? And what remedy might Judge Naranjo be able to muster to compel them to act sooner? ¿Quien sabe?

This is a welcome ruling, but it doesn't manufacture extra hospital beds out of thin air. Perhaps, though, it will set in motion a process that forces the Legislature to focus on the question much more seriously, and immediately, than they have in the past.

Liberty County lowers jail pop nearly 2/3, private contractor wants to up rates, county may de-privatize

Remarkably, Liberty County has reduced its local jail population by nearly 2/3 since early 2011 simply by issuing more personal bonds to low-risk defendants, reported the Cleveland Advocate ("County's jail population down, but companies now asking for more money per inmate," Jan. 22):

Liberty County is already seeing a reduction in costs for the operation of the county jail thanks to a plan initiated by 253rd District Court Judge Chap B. Cain and supported by County Judge Craig McNair, County Court-at-Law Judge Tommy Chambers and 75th District Court Judge Mark Morefield to reduce the inmate population. Morefield discussed the plan as guest speaker of the Cleveland Rotary Club luncheon on Jan. 18

According to Morefield, at the time the plan was put into place, the county was spending 11 percent of its total budget, around $3.85 million, to fund the county jail. Much of the burden had to do with the fact that non-violent offenders were not being released because they were unable to pay their bond.

“It is not about overcrowding. It’s about the expense to the county and ultimately the taxpayers of Liberty County,” said Morefield. “The plan is designed to release low-risk inmates. Give them a PR (personal recognizance) bond and get them out of jail and off the fee list. With PR bonds, there hasn’t always been oversight, but our plan alleviates some of the concern.”

In early 2011, there were 372 male and female inmates in the county jail. For each inmate, the county was required to pay $46.50 to the company contracted to manage the jail, Community Education Centers (CEC).

That equated to around $17,000 per day in costs to the county for housing the inmates.

When the judges met in April prior to the plan being implemented, the inmate population had dropped, but the cost to the county was still around $10,000 per day. According to Morefield, the recent inmate population has dropped to 132.

“That is still not sufficient. We ought to be able to get it down to 100-110,” he said.

While saving county taxpayers is the objective of the plan, the judges are not totally focused on money matters.

“We would never sacrifice the safety of our citizens for economy,” said Morefield.

Liberty County's approach works for one simple reason: The local judiciary led the effort and that's who actually makes the decision regarding whether defendants must put up bail. Any objections by local bail bond companies were apparently overruled and the DA, judging from comments in the article, didn't fight the change, so this is a model that may not be replicable elsewhere.

There's a kicker, though: The private prison company which manages the facility, alarmed by declining inmate numbers (and the state's closure of a small intermediate sanctions faciliity housed at the jail), wants to raise the county's per-inmate rate, wiping out savings to the taxpayer from all their hard work. Reported the Advocate's Vanessa Brasher:

The judges’ plan, having saved the taxpayers millions, may have inadvertently forced the county to no longer outsource the jail’s operation.

The county is currently accepting bids for the jail contract. Morefield said companies submitting bids are apparently aware of the judges’ inmate reduction plan. All of the bids received so far are set on a sliding fee scale.

“One bid said that if the inmate population goes below 200, the cost per inmate goes from $63 to $68 per day. If we work really hard to decrease the inmate population, the cost will go up to $70 per day,” said Morefield. “They are taking all the incentive out of it.”

Morefield feels the county is capable of managing its own jail.

“The prevailing thought any time the government undertakes a project is that the government will pay 1.5 times for something. Government is wasteful. I challenge that thinking that government cannot compete with the private sector. I advocate that you talk to county commissioners about the county taking over the jail,” said Morefield. “I am not saying it will be economically feasible but the taxpayers deserve answers to this issue.”

Most Texas counties can run their jails at a far lower cost per day than the estimates being bandied about in this story, so de-privatization may indeed make a great deal of economic sense, particularly now that jail population numbers are down an amazing 64.5% in just a single year's time!

Grits mentioned the other day how remarkable and noteworthy it is that crime rates (including homicides) declined dramatically in Houston during a period when the county jail population decreased 31%. And in Bexar County, the commissioners court is interrogating why a large reduction (1,000+) in inmate numbers hasn't yielded more savings for the county.

Liberty County's relative achievement (though on a much smaller scale) is even more impressive and worthy of emulation. Their example shows that when judges take the lead, excess incarceration at county jails can be reduced pretty darn rapidly, with little identifiable detriment to public safety. The main barrier to reducing jail costs is a lack of leadership and political courage among judges, who have the authority to act and are uniquely positioned to build consensus among other elected officials (particularly DAs, who can easily throw monkey wrenches into the gears of they have no incentive to work together, and commissioners courts, who must pay for incarceration alternatives).

Finally, it's a welcome development that counties are beginning to see jails as an expense that could be cut instead of a sacred budget cow they daren't touch. I don't think Harris, Bexar, and Liberty will be the last counties we hear of in the next 3-5 years reducing jail populations to save costs.

The Dissenters: Which TX appellate judges author dissents? (Hint: Sharon Keller writes the most)

Presiding Judge Sharon Keller of the Court of Criminal Appeals authored more dissenting opinions in FY2011 than any other Texas appellate judge, Grits was surprised to discover. According to data (xls) from the Office of Court Administration annual report, dissenting opinions are incredibly rare among Texas appellate courts, and only a handful of justices author most of them, Grits' analysis found. Here's a list of the number of dissents at each Texas appellate court in the year ending Aug. 31, 2011, listing every justice who authored more than two dissents:

1st Court (Houston): 32
Terry Jennings: 6
Evelyn Keyes: 4
Jim Sharp, Jr.: 17

2nd Court (Fort Worth): 21
Lee Ann Dauphinot: 13

3rd Court (Austin): 17
Jan Patterson: 3
David Puryear: 5
Diane Henson: 3

4th Court (San Antonio): 4

5th Court (Dallas): 4
Mary Murphy: 4

6th Court (Texarkana): 3
Jack Carter: 3

7th Court (Amarillo): 2

8th Court (El Paso): 0

9th Court (Beaumont): 5
David Gaultney: 4

10th Court (Waco): 6
Chief Justice Thomas Gray: 4

11th Court (Eastland): 1

12th Court (Tyler): 0

13th Court (Corpus Christi): 8

14th Court (Houston): 21
John Anderson: 3
Kern Thompson Frost: 7
Tracy Christopher: 4

Total dissents by Texas Court of Appeals justices: 124
Total original opinions on merits: 6,199

Chief Justice Thomas Gray at the 10th Court may have the reputation as the state's most ardent dissenter among appellate judges, but by the numbers he's certainly not among the most frequent, or wasn't last year.

At the Court of Criminal Appeals (pdf), similarly, a handful of judges, led by Presiding Judge Sharon Kelle, accounted for most dissents authored on the court:

Keller: 20
Price: 9
Meyers: 8
Johnson: 4
Cochran:  2
Alcala: 2
Keasler: 1
Hervey: 1
Holcomb: 0*
Womack: 0

*Replaced by Alcala this summer.

No Texas Supreme Court Justice authored more than 6 dissents (Phil Johnson).

That said, how should one interpret this data? Are more dissents a good or bad thing? It depends, of course, on the dissent and the dissenter. A jurist who never dissents may just be going along to get along, refusing to assert principle when it's called for. By the same token, there are advantages to judges signing onto an opinion in order to influence its nuance when it becomes obvious dissenters don't have votes to prevail. In Judge Keller's case, the (relatively) large number of dissents may represent growing frustration as she's begun to lose her once-iron grip on the court to a nascent plurality of still-conservative but more independent thinkers. It's probably impossible to generalize. I just found the disparities interesting and thought other court-watchers might too.

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

Roundup: Coverage of prosecutor misconduct investigation in Michael Morton case

The articles linked below collectively cast a great deal more light on the prosecutorial misconduct investigation in Williamson County surrounding Judge Ken Anderson and his role prosecuting an innocent man, Michael Morton, for murdering his wife in the '80s. Most Grits readers are familiar with the story: With an innocent man locked up, the real killer went on to commit more crimes, including another murder in the Austin area. Now that DNA has exonerated Morton, his lawyers are investigating alleged prosecutorial misconduct that led to their client's false conviction. A lot's been happening on that front this week, with Judge Ken Anderson's much-anticipated deposition finally released; here are a few recent links for those looking to stay abreast of the controversy:

• Wilco Watchdog: "John Bradley: 'Grasping at straws'"
  
• Wilco Watchdog: "The Ken Anderson Deposition: The Truth Will Set You Free, Part I"
• Wilco Watchdog: "The Ken Anderson Deposition: Part II"
  
• Wilco Watchdog: "John Bradley: What he never told us about the Morton case"
  
• Wilco Watchdog: "Ken Anderson acknowledges the obvious"
• Texas Tribune: "In deposition, Morton prosecutor can't recall specific details"
• Your News Now Austin, "'Don't recall,' 'Can't remember' seem themes of Anderson's deposition"
• Your News Now Austin, "Anderson acknowledges evidence withheld from defense"
• AP: "Former Williamson County DA says he didn't withhold evidence in wrongful conviction"
• Williamson County Sun: "Anderson 'upset' by sheriff's Morton investigation"
• Williamson County Sun: "Anderson remembers little in nine-hour inquiry"
• Austin Statesman: "Anderson and Morton lawyers spar over DA's role in wrongful prosecution"
• Austin Statesman: "Duty says she's 'strongly considering' running for DA" [against Bradley]

• Ken Anderson Deposition Part 1
• Ken Anderson Deposition Part 2

This amnesiac response from Anderson is especially odd since we know from Don Wood's deposition that Anderson personally attended a meeting before his deposition where all the principles on the prosecution team were given an opportunity to go over old records and discuss the case together, supposedly to refresh their memories (as opposed to getting their stories straight or agreeing to an omerta pact). How can Anderson recall so little, one wonders, having so recently read through the file, discussed it with the principal investigator, etc.?

Grits predicted after Sgt. Don Wood said he remembered nothing about the case that Judge Anderson's memory would probably "turn out to be similarly impaired," and indeed that's how it played out. At best these claims of memory loss come off as dubious, at worst as pure CYA. Judge Anderson remembers nothing about the case except he remembers for certain he did nothing wrong? If he really has no memory, how can he be so sure? Right now, the paper trail argues strongly that Anderson cheated to win and an innocent man spent a quarter-century in prison as a result. Given the evidence now available that Williamson County prosecutors fought for years to conceal, it will take more than blanket denials and claims of memory loss to dispel that singular impression.

Lower jail population provides budget relief in Wichita County

In Wichita County, reducing the county jail population has resulted in substantial, welcome savings in the county budget. The Wichita Falls Times Record News has a story by Matt Ledesma with the bland title "County jail has fewer inmates" which documents Wichita County's remarkable, concerted effort this year among the sheriff, judges and prosecutors to reduce the local jail population quite dramatically: The story opened:

Wichita County Jail officials faced a big problem to start 2011 — concerning a record-setting number of inmates.

The large jail population — which reached a high of 653 in January — put a significant strain on staff and the county's budget to maintain the downtown and Sprague Annex jails.

That burden has been lifted somewhat recently through the efforts of several entities at the Wichita County Courthouse, according to Wichita County Sheriff David Duke.

"Our jail population has slowed down quite a bit, and it's an accumulation of several factors," Duke said. "A lower jail population means there's been a substantial savings to Wichita County. We've had an excess of more than $600,000 to $700,000 we're not using that we've been able to turn back in to the budget."

Population numbers in November have averaged about 420. That's a significant decrease from an average of about 613 in January.

That average has dropped steadily since February, though that's not due to a lack of law enforcement activity, Duke said. Daily book-ins have remained nearly the same throughout the year, hovering at about 24.

Instead, Duke credited several groups at the courthouse for the stretch of desirable population numbers.

"One of those factors is our staff being able to process faster, inmates that are ready to be sent to (Texas Department of Corrections) or state jail," Duke said. "We've also gotten help from the District Attorney's Office. We have more people being convicted and sent to prison now than we ever have that I can remember in the last 29 years of my service to Wichita County. That's because of the new district attorney and her staff that have changed a lot of the ways they do business up there."

Duke also touted the efforts of the district court and county court at law judges in dealing with plea arrangements on felony and misdemeanor cases. He said the judges are also able to handle many of those cases at the same time, further expediting the process.

The savings to the county, brought on by that streamlined process, have also helped out in other problem areas. Funds once earmarked for the crowded conditions are now being put toward a large amount of amassed overtime pay for county employees, Duke said.

He said the low numbers have also meant a cutback on overtime pay for jail staff requirements based on the daily inmate population.

That's an impressive 31.5% reduction in the local jail population in less than a year. Not many other counties could make that claim. This example highlights how addressing jail crowding problems really requires cooperation across an array of entities from the police to the DA, the Sheriff, judges and even the defense bar  - there are too many cooks in the kitchen, many of them elected officials, and as the proverb says, it's difficult for them all to work together without spoiling the broth. Maybe such cooperation is easier in a mid-size county like Wichita than in larger cities like San Antonio and Houston.  In any event, if they can sustain it, their example shows such problems are not insoluble, or rather there are more solutions to be had than simply ever-expanding jail construction.

Few cases against judges sustained by Judicial Conduct Commission

Looking at the self-evaluation report (pdf) from the State Commission on Judicial Conduct, we discover that scarce few complaints against judges result in any sort of disciplinary action, including reprimands, warnings, or "private admonitions." Here's a chart Grits compiled from data on p. 19:


A total of 22 judges over this period resigned in lieu of disciplinary action by the commission, including 10 in FY 2010. (Analyzing details of those stories would make an interesting study of the dark underbelly of Texas jurisprudence!) Of the tiny number of cases resulting in disciplinary actions, a whopping 118 of the 260 sanctions (45.4%) against Texas elected judges over this period were kept private, with details never reported to the public.

In none of those years, though, did the commission take the extraordinary step of recommending the Supreme Court suspend a judge, as they did in William Adams' case.

Holding Texas judges accountable for past misconduct: William Adams and Ken Anderson

Quite a few readers contacted Grits a couple of weeks ago asking if I planned to comment on the Aransas County family law judge who was videotaped beating the living crap out of his then-16 year old daughter for illegally downloading music. She made the video in 2004 before releasing it in retaliation earlier this month when he threatened to cut her off financially (revenge, unlike grits, is best served cold). Grits refrained, mainly because the topic was being widely discussed by others more effectively than anything I could have said, and I had nothing in particular to add to what was mostly a family-law discussion. (Besides, 3+ million people had seen the YouTube clip before I did; it hardly needed my promotion.) The video was horrendous, nearly unwatchable, far exceeding any acceptable fatherly punishment to surpass the threshhold to "abuse." But the statute of limitations had run out, the daughter is now 23 and no longer lives with her father, and most attorneys who've looked at the question, including the local DA, agreed there's no way to turn it into a criminal matter.

Even so, I was fascinated to learn via CNN that the State Commission on Judicial Conduct is not only investigating the old abuse allegations but has convinced the judge to accept a paid suspension while it does so:

Judge William Adams, who made national headlines after the release of a 2004 video of him beating his then-teenage daughter, has been suspended by the Texas Supreme Court.

Adams, while not admitting guilt or wrongdoing, agreed to the suspension. He will be paid during the suspension.

The judge's lawyer, William Dudley, said his client proposed the suspension motion with input from the state Commission on Judicial Conduct, which is investigating the incident. Adams already was on voluntary leave, Dudley said in a statement to CNN.

See the order (pdf) and the commission's public statement (pdf) in Judge Adams' case, and the commission's rules (pdf) for disciplining or removing judges. What interests Grits in particular are possible parallels to Williamson County District Judge Ken Anderson, the prosecutor in the Michael Morton case who 25 years ago apparently hid exculpatory evidence from both the defense and the court to convict an innocent man, allowing the guilty one to remain living free in Bastrop County for the intervening decades. Just as the statute of limitations has run out on any possible offenses in the video from Adams' years-ago incident, the statute or limitations on any prosecutorial misconduct in the 25-year old Morton case have also likely expired. But if the Commission on Judicial Conduct can investigate Judge Adams over old abuse allegations, and even facilitate his suspension while they do so, why can't or won't they do the same for Judge Anderson in Williamson County?

I've been told privately that, even though the statute of limitations on Adams' conduct may have expired, there's an argument to be made that the commission could pursue him under its constitutional authority to discipline judges who engage in "willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice." A family law judge who engaged in that kind of behavior in his own family life, the argument goes, willfully engaged in behavior that cast discredit on the judiciary.

Similarly, assuming withholding exculpatory evidence from the judge was a willful act (instead of an act of extreme, near-unfathomable incompetence), it's hard to argue that Judge Anderson's recently-revealed shortcomings aren't "inconsistent with the proper performance of his duties or casts public discredit upon the judiciary." If the Commission on Judicial Conduct found a hook to justify intervention on older charges in Adams' case, Judge Anderson's should be similarly fair game.

Ken Anderson hid evidence and misled the judge in perhaps the biggest trial of his prosecutorial career. His alleged misconduct was primarily responsible for a false conviction which ranks among the worst injustices in the state's history, threatening to elevate him to Mike-Nifong status in the pantheon of convict-at-any-cost prosecutors willing to cheat to win. He's an embarrassment to his county and his profession - yet he still sits on the bench in a Williamson County District Court, dispensing what passes for "justice" in that jurisdiction. Why? Anderson's past misdeeds weren't violent but they discredit any claim he might make to integrity or impartiality on the bench in much the way that Judge Adams' tumultuous family life discredits his family-law credentials.

Grits suspects Anderson himself has insufficient capacity for self-reflection or shame to himself contemplate stepping down; his failure to accept responsibility - apologizing for "the system" but insisting he himself was blameless - surely demonstrates that. But if the Commission can find a hook to go after Judge Adams regarding years-old charges, they should find a way to do the same thing in Williamson County. Much as with Judge Adams, every day Anderson remains on the bench taints and demeans not just the integrity of Texas' judiciary but the entire legal profession.

Opportunity for activism
Speaking of the Commission on Judicial Conduct, they're up for Sunset review along with TDCJ and the Board of Pardons and Paroles, and you can see their self-evaluation report here (pdf). (More soon analyzing that document.) Anyone frustrated with the impotence of judicial oversight in Texas should view the Sunset process as an excellent chance to suggest improvements to the process.

'How to curb rogue prosecutors,' or, 'The gathering clouds'

Grits linked the other day to a Dallas News editorial (behind paywall) published over the weekend (Nov. 12) titled "How to curb rogue prosecutors" which opened:

One thread running through many criminal exoneration cases in Texas involves prosecutors who failed their legal and moral duty to justice and fair play.

Too many of them appear to have been more interested in winning a conviction than airing the whole truth, even at the expense of someone’s liberties.

Lawmakers need to unravel these tangled messes, then find ways to build safeguards against willful or sloppy miscarriage of justice in a district attorney’s office.

Notably, to solve this problem, the News offered three suggestions: A statutorily mandated "reciprocal discovery procedure" where prosecutors must open their files to the defense, improved training (la de da), and most intriguingly, creating state-level civil liability for extreme prosecutor misconduct:

Finally, though a prosecutor can be criminally charged for misusing his position, an individual who is railroaded by a crooked DA has no access to state courts to pursue civil claims.

Legislation was filed this year to provide that access and limit a prosecutor’s immunity, but the bill went nowhere, with no debate. Lawmakers should take another look, give the matter their full attention and hear pros and cons.

The vast majority of prosecutors are honorable public servants and should not have to look over their shoulders in fear of nuisance suits. That could drive them out of the profession.

But there are outliers in any occupation, and they should not be immune from accountability.

The bill they're talking about was Rep. Lon Burnam's HB 2641, which, as described in this Grits post, would have provided a "a state-level remedy to federal judicial activism" which created the doctrine of "absolute immunity" for prosecutors whole cloth with no statutory basis whatsoever. If you're really and truly "fed up" with the federal judiciary from a state's rights standpoint, this should be a cause you can get behind: It's the ultimate snub, asserting Texas' rights as a state over decades-old federal judicial fiat. Framed thusly as an expression of 10th Amendment state's rights, I see no reason why such legislation couldn't garner bipartisan support, even if it rankled a lot of prosecutors along the way.

Such ideas seem dangerous and heretical to career prosecutors. But we live in a moment when folks in the Tea Party, the "occupy" movement, those groups' respective fellow travelers, and wide swaths of unaffiliated but alienated voters are fed up with the status quo and potentially open to "dangerous and heretical" ideas. At their user forum, the District and County Attorney Association lobbyist pointed to the Dallas News editorial under the headline, "The gathering clouds." They can see the storm coming.

In many ways, tackling prosecutor (and police) misconduct remains among the lasts frontiers where criminal justice reformers have made little progress. A lot of the early legislative goals of the innocence movement in Texas have been met. Post-conviction DNA testing was established, then expanded. Eyewitness ID legislation was passed and Texas courts are reexamining eyewitness evidence. Corroboration was required for jailhouse informant testimony and undercover drug snitches. Texas now has the most generous compensation package in the nation for exonerees. New standards are being created regarding biological evidence preservation.

Certainly the task is far from complete. I'd still like to see police required to record interrogations, and in light of recent rulings at the Court of Criminal Appeals, Texas' writ law needs tweaking so that defendants can seek habeas relief not just based on new evidence but also new scientific findings that discredit old evidence. Thousands of old, untested rape kits discovered at police departments around the state should be vetted not just for who they might help convict but also who might be exonerated. The Forensic Science Commission's jurisdiction is too constricted and needs to be expanded. With the notable exception of arson cases, no official body has begun to systematically vet bad forensics in old cases. (For example, there's been no official examination of cases where people were convicted based on since-discredited testimony by dog-handler Keith Pikett in so-called "scent lineups.") There's still a lot to do.

But at least on all those issues, what needs to be done is fairly straightforward. Prosecutor misconduct has been among the toughest nuts to crack, in part because there's a paucity of ideas for how to effectively rein it in. To say the state bar has been ineffective on the topic would be generous. (I've heard it said they've been "complicit," which is closer to the truth.) Complicating matters, prosecutors enjoy disproportionate power both in local politics and at the Lege.

There's a little time - not much, but a little - to figure out the best approach to confront prosecutorial misconduct in the current political environment before the 83rd Texas Legislature is upon us. See Grits' greatest hit list of ideas on possible legislative solutions to prosecutorial misconduct, and let me know what other clever suggestions you come up with, in the comments or via email. There's bound to be a way to skin this cat that'll satisfy everybody across the political spectrum, or at least everyone who's not just fundamentally against cat skinning in the first place.

Why judges rubber stamp search warrants based on anonymous CIs

If you ever wonder why judges sign off on questionable search warrants in drug cases based on information from unnamed criminals working as informants on behalf of police, the short answer is, "they have to." As evidence, look no further than a recent example in Houston where Judge Kevin Fine's denial of a search warrant was overturned by the 14th Court of Appeals. What drew this benchslapping? Applying too-strict scrutiny to hearsay information from an anonymous informant. Even where judges think such testimony merits more corroboration, in Texas judges are apparently bound to accept it uncritically when considering pre-indictment search warrants. The Houston Press has the story.

'We've had enough of courthouse cronyism'

The Houston Chronicle has an editorial today with the same title as this post criticizing alleged cronyism among judges in how they select attorneys appearing before their courts, particularly in juvenile arena, reacting to a pair of recent stories by columnist Lisa Falkenberg which found state Sen. John Whitmire on the warpath. See:

• We've had enough of courthouse cronyism
• Former judge Pat Shelton just won't go away
• A case of 'Oh no, not again'

The Chron reported that Judge Pat Shelton left office in the face of criticism "for directing most of his court appointments to attorneys who contributed heavily to his re-election campaigns. One of them, Glenn Devlin, won election as Shelton's successor in the 313th District Court last year when Shelton declined to run." Sen. Whitmire and others had criticized Shelton's "cozy relationship with attorneys he lavished with lucrative appointments, his hiring of bad attorneys over the more experienced, board-certified variety, and his apparent preference to adopt out children to foster families rather than consider placements with blood relatives first, as the law requires."

So "how did Shelton find his way back onto the bench and into the limelight?," asks the editorial board. "Turns out that although he is not on the approved list of visiting judges for the region, [Judge Glenn] Devlin had named him as a substitute judge using local rules that allow juvenile judges to appoint friends and former colleagues without oversight. Apparently one good ol' boy was rewarding a former judicial patron for past favors."

True that. (More soon, perhaps, on court appointment systems in Harris County.) But Chronicle editorial writers could have tagged the same title onto a series of nascent stories about an apparently rogue grand jury that may be investigating misconduct in the firing of former Houston crime lab supervisor Amanda Culbertson after she identified flaws in breathalyzer systems used in mobile blood alcohol testing units, colloquially known as B.A.T. vans.

• Grand jury may be targeting DA in HPD van probe"
• Retaliation, contracts and the DA
• Harris County DA's Office accused of retaliation

Murray Newman chimes in with a snarkily titled but probative explication of what's known from recent court filings in a missive headlined "Pat Lykos' Star Chamber Rebels." KTRK's headline was "Grand jury kicks out DA's office in BAT van case." At one point the grand jury apparently ordered the bailiffs to arrest Harris County prosecutors if they tried to enter the room while testimony was being taken related to alleged retaliation over exposing flawed DWI forensics.

Go read their coverage: Grits has little to add to either story for the moment except to find them both as remarkable as they are disappointing.

Mea culpa: Keller, Hervey surprise while Alcala prevails in absence

A reader sends Grits a note to "keep [me] honest," declaring "In your post from June 20, 2011 about Judge Alcala, you talk about an opinion in which she dissented while she was still at the 1st Court of Appeals." Readers may recall the piece he's discussing analyzed notable criminal opinions authored by rookie Court of Criminal Appeals Judge Elsa Alacala while she was an appellate judge on the First Court of Appeals in Houston. On the item in question, Grits had written:

In one of Alcala's rare dissents in a criminal case, she would have reversed and remanded a conviction because the trial court did not instruct the jury to consider the possibility of convicting only on a lesser included offense, since the jury could have plausibly inferred that the defendant was not in immediate flight when an assault occurred a half hour after a theft.  I don't suspect for a moment Judge Keller or Hervey on the CCA, for example, would have blinked before signing off on the majority opinion , but Alcala's dissent smartly parses the case law to make distinctions between the instant case and those cited by her colleagues affirming the decision." (emphasis added by my esteemed reader)

Continued my reader, "This case made it to the CCA, and an opinion written by Judge Hervey was handed down 3 days ago.  It actually affirmed Judge Alcala's dissenting opinion from the Court of Appeals. And it turns out you were wrong about Judges Keller and Hervey in this instance." Indeed! The case was overturned on those grounds and sent back to the lower courts for a harm analysis. Judge Hervey authored the opinion in the case, siding with Alcala's dissent (Alcala sat out arguments because she heard it at the appellate level).

So my apologies, Judge Keller and Hervey, for underestimating you, but congrats to Judge Alcala, whose arguments ruled the day even without the presence of her vote. And for what it's worth, I appreciate the reader "keeping [me] honest." My pessimism about the court was unfounded, at least in this case and indeed in several notable, recent rulings. In such matters, I'm pleasantly surprised to see evidence stack up contrary to my expectations. It's particularly nice to see because after Ex Parte Robbins this summer, your correspondent was getting a little jaded. Mea culpa.

Harris jail noncompliance caused by using pretrial detention to coerce plea deals

The Harris County Jail has been cited again by the Commission on Jail Standards for overcrowding, but as has long been the case really their problem is understaffing. Reported James Pinkerton at the Houston Chronicle (Oct. 11):

The state jail commission cited Harris County for having 355 prisoners more than authorized in 19 cells in the basements of two criminal justice buildings on Monday, the latest setback in a chronically overcrowded jail system that costs taxpayers $18 million a year in overtime alone.

The citations were issued by the Texas Commission on Jail Standards, after inspectors made a surprise inspection at 5 a.m. Monday of holding cells beneath court facilities at 1201 Franklin and an adjacent building at 1301 Franklin, which are connected by tunnels to the county jail.

One holding cell at 1301 Franklin with an approved capacity of five inmates was packed with 25. In cellsbeneath 1201 Franklin, only five jailers were supervising 409 prisoners, fewer than the nine required by state law. Inmates housed in the holding cells await court proceedings.

The jail commission's executive director, Adan Munoz, said the "blatant overcrowding" his inspectors found in the holding facilities Monday will not be tolerated. He added the situation posed not only a potential health danger to inmates, but an opportunity for a riot, an attack on inmates, or an escape attempt.

"That's dangerous, when you put that many inmates in a cell," Munoz said. "One had 76 in a 23-person cell. My God, that's a danger in itself. It could be a health issue."

Munoz said Harris County has 30 days to submit a plan to correct the deficiencies and must be able to show the remedy is working for 30 days to avoid state sanctions.

"My inspector there this morning mentioned the cells were not only overcrowded but they smelled, it was filthy,'' Munoz said.

County Sheriff Adrian Garcia said overcrowding in holding cells is due to a shortage of jailers, adding he has repeatedly asked for authorization to replace some of the 300 full-time jailers who have left. The jail operates on a $220 million annual budget and employs 2,274 employees.

There's a sense in which this issue is being falsely framed: The immediate problem is not "overcrowding' per se but understaffing. When Grits visited the jail in 2010, there were 600 empty beds on the upper floors that could only be staffed with overtime. This was a key reason Grits opposed Harris County's jail expansion plan a few years back: What good does it do to add extra cell capacity if there aren't enough guards to staff the facility now?

One welcome difference from similar debates in the past, "District Attorney Pat Lykos  released a statement saying her office is 'committed to working with all relevant officials to resolve the situation to ensure compliance' with state jail standards." If that's true, then the problem can perhaps be mitigated. Sheriff Garcia alone can't reduce the number of prisoners in the jail or manufacture extra staff out of thin air. He needs assistance from other players in the system, and the largest share of responsibility lies with judges and the DA's office.

You can see that reading between the lines at the end of Pinkerton's story. Though Judge Belinda Hill disputed it, the Sheriff's Office says that half of inmates brought to court - those in the holding cells criticized for understaffing - never made it into the courtroom, usually because prosecutors and defense attorneys reached a plea deal. This brings up the real issue: Prosecutors routinely request and judges routinely require bail for low-risk, low-income defendants primarily for the purposes of pressuring them for a plea bargain, not because they're a serious public safety risk if released awaiting trial. For many if not most jail inmates, the main incarceration they'll experience will be during pretrial detention, not serving a post-conviction punishment. At its endgame, the purpose for incarcerating so many low-risk defendants pretrial isn't so much to protect the public - nearly all of those who aren't sent to prison will get out soon, anyway - as to lower the workload of already overwhelmed courts, which would be completely swamped if more defendants exercised their right to trial.

So judges would rather create problems for the Sheriff than reduce overcrowding because reducing pretrial detention would lower incentives for defendants to take plea deals. These practices have grown the system to the point where the commissioners court can no longer afford to adequately staff the jail without significant tax increases that are not politically palpable. As a result, the system flounders.

Whatever solutions are proposed to the immediate problem, we're dealing with symptoms rather than the underlying pathogen. Ultimately the volume of cases piped through the system is unsustainable, and squeezing the balloon in one area, like the jail, causes it to bulge in other places like the courts. As Grits has lamented many times, we live in an era when the criminal justice system is treated as the go-to solution to every social problem from addiction to homelessness to immigration to mental illness: That's a situation the courts and sheriff didn't create, but which in the short to medium term they must manage. In the long run, the better solution is for the Legislature and local government to create alternative mechanisms besides cops, courts and jails to deal with those in society who're perhaps troublesome but not especially dangerous.

Federal judge: In prison or out, due process required for parole board to assign "Condition X"

Regular readers are aware of the controversy surrounding the Board of Pardons and Paroles assigning sex-offender conditions to parolees who've never been convicted of a sex crime.

The latest federal court ruling (pdf) on the subject, a preliminary injunction issued today barring assignment of "Condition X" to parolee Buddy Yeary, not only continues to maintain that the BPP can't apply sex-offender conditions without due process, it informs us that a new BPP policy to assign those conditions before parole, described here, will similarly fail to pass constitutional muster, though that issue wasn't squarely before the court.

Wrote Judge Lee Yeakel, "There can be no doubt that the law is well-settled in this regard: The imposition of sex-offender conditions on a defendant who has not been convicted of a sex offense - whether a prisoner or a parolee - without first providing the defendant with certain due-process protections is unconstitutional."

As reported in this Grits post, in the wake of prior court rulings that they couldn't assign "Condition X" without holding a hearing giving the parolee an opportunity to contest it, the parole board implemented a new policy (pdf) aiming to apply "Condition X" prior to release instead of after the prisoner has been paroled.

Judge Yeakel's latest ruling, though, says a hearing is required whether the offender is "a prisoner or a parolee." I don't know how long the Board of Pardons and Paroles will continue to flout these federal rulings, but at some point one of these case will get to the court in a procedural posture that lets the judge order hearings across the board instead of only for this or that individual defendant. As Yeakel said, the law is clear; what's unclear is why the BPP won't acquiesce and begin to follow it now that it's been clearly, repeatedly explained to them.

See related Grits posts:

• Parole board continues shell game over due process for sex-offender conditions
• Federal judge bench slaps parole board over applying sex-offender conditions without due process
• Did parole board dawdling create civil liability for Texas on sex-offender conditions?
• New parole rules require due process for sex-offender conditions
• Court: Parole board can't impose sex-offender conditions without evidentiary hearing
• Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"
• Federal judge: Parole board may have improperly labeled thousands as 'sex offenders'
• Federal litigation seeks individualized review of sex-offender cases by parole board

Making a federal case of it: Traditional federal crimes squeezed out by pot, immigration cases

From US Sentencing Commission data (pdf), Grits compiled this table showing how immigration cases have pushed aside other, traditional priorities for federal prosecutors in Texas compared to their counterparts in other states:

FY 2010 Federal Cases by Type, Texas vs. National

	National	Texas
Immigration	34.4%	62.0%
Drugs	28.9%	23.0%
Fraud	9.7%	4.8%
White Collar (Non-Fraud)	3.6%	1.7%
Larceny	2.0%	0.7%
Firearms	9.6%	3.8%
Child Pornography	2.3%	0.8%
Other	9.5%	3.3%

Another big difference between federal cases in Texas vs. the rest of the country is that the majority of Texas drug cases prosecuted by the feds are for marijuana (56.9%) compared to just over a quarter of federal drug cases (26.3%) nationwide. Cocaine, heroin and meth all make up lower proportions of federal drug cases in Texas than nationally.

Growing up, you'd hear the phrase "don't make a federal case out of it" as an admonition not to treat trivial matters as though they're of the utmost seriousness. But with immigration and marijuana cases so dominant in Texas' federal courts while traditional fraud, larceny and white-collar cases are being minimized, maybe that phrase should be retired as an anachronism.

'Emergency' or not, federal judge slots remain unfilled

Though Texas belatedly has had its four US Attorneys slots approved, the Texas Tribune reported earlier this week that we still can't get most of the vacant federal judges slots filled, even where vacancies have been declared "judicial emergencies" because of overwhelming caseloads. The Oct. 3 story opened:

A nonpartisan group of Texas lawyers, law professors and other legal advocates today called on the U.S. Senate to quickly fill judicial vacancies that are slowing down the justice system in Texas and nationwide.

While applauding the Oct. 3 confirmation of U.S. District Judge Marina Garcia Marmolejo to the Southern District Court in Houston, the group said at a press conference today that the Senate has much more work to do.

In Texas, there are seven federal judicial vacancies — one on the U.S. 5th Circuit Court of Appeals and six on U.S. district trial courts. The legal advocates said that unfilled judicial positions lead to unmanageable workloads for presiding judges, lengthy delays and, ultimately, in some districts, judicial emergencies, as defined by Administrative Office of the U.S. Courts. The national picture looks even grimmer, with 89 judicial vacancies. Some 32 of those vacancies have led to judicial emergencies, said Margaret Justus, spokeswoman for the legal group.

The high rate of vacancies across the country is particularly frustrating, the group said, because 52 judicial nominations  — four of those in Texas — are pending in the Senate.

I'd hoped earlier this year when Chief Justice John Roberts highlighted the issue in his State of the Judiciary speech that GOP senators - especially Texas Sen. John Cornyn, who's a key leader among judicial obstructionists - would ease up and allow more nominees through, particularly in Texas' Southern and Western Districts which have been so overwhelmed with immigration cases that they barely prosecute other types of offenses anymore. But at this point I'd be surprised if Texas sees any more federal judges approved before the 2012 election.