Bob Libal at Texas Prison Bidness pointed out a local TV news story out of Waco focused on the fallout from a debt-trap contract jail deal with private prison company Community Education Centers (CEC) that looms over the county budget like a financial Sword of Damocles. County commissioners are considering rescinding their contract with CEC - just as Liberty County is now contemplating after their jail population lowered substantially - because of a lack of available contracts to fill hundreds of unneeded jail beds built as part of an entrepreneurial partnership with the company.
Today Texas jails overall are experiencing substantial vacancy rates in part because of a wave of speculative building by counties since the turn of the century. Statewide, according to the Commission on Jail Standards, about a third of county jail beds were empty as of March 1. Jail populations are plummeting for reasons no one can entirely explain. So many Texas counties that bet on the come - overbuilding their jails hoping to cash in on contract incarceration through public-private partnerships like this one - now must eat their losses, or rather pass them on to taxpayers. And that's where McLennan County Commissioners find themselves today.
TPB adds that "Critiques of CEC's handling of immigration detainees continued [recently] as New York University and New Jersey immigrant rights groups issued a report claiming the company's Delaney Hall facility does not 'fully comply with ICE standards, the report documents problems with everything from access to legal assistance and worship services to adequate health care, food and other basic services for detainees.' (Washington Post, March 23)"
In other private prison news, reports Yahoo! Finance, "SunTrust downgraded Corrections Corp citing expectations for mixed news regarding state budgets and lower occupancy at some facilities." Apparently they don't expect states to take the company up on its recent buy-leaseback offer. Grits has argued that Corrections Corp and, even more so, its main competitor the GEO Group, are too overloaded with debt to justify rosy financial projections, particularly if the incarceration bubble continues to burst.
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Sabtu, 31 Maret 2012
Minggu, 25 Maret 2012
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:
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:
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.
[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.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.
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 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.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.
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.
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.
Selasa, 21 Februari 2012
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.
Senin, 20 Februari 2012
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:
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.:
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.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 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.
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.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.
“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.”
Senin, 09 Januari 2012
Good blogging by others
Several posts from other Texas blogs related to topics sometimes discussed on Grits deserve readers' attention:
Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world. Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.
Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."
Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:
Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.
Some Harris County grand juries runaway, some never leave the station
I haven't written much about the "runaway" grand jury in Harris County evaluating potential misconduct by the District Attorney, nor the apparent failure to timely empanel grand juries in the new year, mainly because the process is secret and at this distance I can't make hide nor hair of what's happening amidst all the campaign-driven allegations and counter-allegations. Some folks closer to the action, though, are attempting to divine the true circumstances, most notably Mark Bennett, who analyzes the imbroglio here, and Murray Newman, who sees the delay in empaneling grand juries as nigh-on the end of the world. Paul Kennedy, by contrast, can't understand what all the fuss is about. Much more serious, clearly, is the grand jury's subpoena of DA Pat Lykos, which seems like a late Christmas present to Newman. Bennett considers it "unprecedented for a Texas grand jury to subpoena a sitting District Attorney. Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the Fifth, it’s because she really means it." Good stuff all around. The Houston legal blogosphere is working through these issues more quickly and deftly than the MSM.
Kuff: Still "too many" inmates after Harris jail pop reduction
Charles Kuffner reacts to good news that murders are down nearly as much as the local jail population, a development discussed in this Grits post. Kuff suggests that "We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time."
Cart before horse: Implications of possible innocence in Lake Waco murders
The Texas Moratorium Network has a pair of posts discussing the possible implications if DNA testing in the 30 year old Lake Waco murders comes back exonerating the men convicted of the crime, which could prove for the first time that the state has actually executed an innocent man:
- New development in seeking DNA testing in Lake Waco murders for sole surviving defendant (other defendant David Spence already executed)
- Did George W. Bush execute an innocent person: David Wayne Spence?
Bias, the judiciary and the death penalty
Another post from the Texas Moratorium Network chides the Texas judiciary for only being intolerant of bias in one direction: If Teresa Hawthorne Must Recuse Herself From Death Penalty Case, Then Sharon Keller Must Recuse Herself From All Cases. The post opens, "In Texas it is apparently ok for a Republican judge to say that they are “pro prosecution”, as Judge Sharon Keller has done, and not have to recuse herself from any cases, but if a Democratic judge expresses any doubts about the constitutionality of the death penalty, then she must recuse herself. If Teresa Hawthorne must recuse herself from the current death penalty case because of “bias”, then Judge Sharon Keller should recuse herself from all cases before her court." Mike Hashimoto at the Dallas News was less kind to Judge Hawthorne, calling her opinion "goofy." See more from the Dallas Observer blog.
Senin, 02 Januari 2012
Private Prison Foibles
Last week the blog Texas Prison Bidness gave us their list of the top 5 private prison stories in 2011:
1. CCA takeover would make Harris County Jail largest private prisonIn related news, at this point the McLennan County Jail in Waco appears cursed by the foolish management decision to build excess capacity and let a private company manage the facility. Now they're stuck with an empty, money-losing jail and a management contractor accused of abuse that recently cost them an immigration contract with the feds. Reported KXXV-TV (Dec. 27):
2. Resistance to private immigrant detention centers grows
3. ALEC and private prison lobbying exposed
4. ICE's 'detention reforms' benefit private prison contractors
5. Lawmakers attempt to privatize state jails
The ICE investigation must have come up with something if they transferred all their inmates as a result, so I suspect there's more than "rumors" behind the decision to remove them. It's difficult to feel sorry for McLennan County commissioners, who brought this on themselves, but of course it's taxpayers who bear the true burden. This star-crossed project was ill-conceived from the beginning, with today's financial woes mere recompense for commissioners' decision to gamble with taxpayer money on unneeded, speculative jail construction.The McLennan County Commissioners Court is giving Community Education Centers (CEC), a third party management company, more time to generate revenue at one local jail, despite their company being accused of abuse at another area facility.County commissioners decided to renew a contract with the CEC for the downtown McLennan County jail Tuesday morning. The jail is currently empty while improvements are being made to bring the facility to state guidelines.The court agreed to extend the CEC's operation of the downtown jail just days after the county had learned about abuse claims from the McLennan County Jack Harwell Jail (another facility ran by the CEC)."I really don't know what is involved till we get the facts in," said Kelly Snell, McLennan County Commissioner. "I can't speculate on rumors."The rumors include complaints filed by inmates about not receiving medical treatment and proper care while in the Harwell facility.Immigration and Customs Enforcement (ICE) recently moved all 80 of their existing inmates out of that facility after it investigated those complaints.
See prior Grits posts:
- When fewer inmates is a big problem: Perverse incentives and the McLennan County Jail
- McLennan County cuts jail pharmacy spending as doomsday deal devolves
- Will county cost cutting doom speculative jail in Waco?
- McLennan County on the hook for bonds on privatized jail
- Waco taxpayers likely on the hook for jail they were promised would pay for itself
- 'Doomsday Deal': Prison for profit scheme in Waco going bust for lack of inmates
- McLennan County private jail deal creates perverse incentives
Minggu, 20 November 2011
Waco DA issues spurious 'guidelines' on post-conviction DNA testing
McLennan County District Attorney Abel Reyna appears to be struggling with the conflict between enforcing the law and promoting his own policy preferences in the courtroom, at least when it comes to DNA testing in the so-called Lake Waco murder cases, which he continues to oppose despite having no legal basis to do so. As Cindy Culp reports in the Waco Tribune Herald (behind paywall), Reyna's stance sets him apart: "In stark opposition to prosecutors in some of Texas’ largest jurisdictions, ... Reyna has no plans to adopt a policy generally supporting prisoners’ requests for DNA testing after conviction," the story opens.
Wrote Culp, "Reyna, who took office in January, said he won’t support testing requests unless a case meets a rigorous set of guidelines."
The problem is, his "guidelines" have no basis in law and in fact contradict a Texas statute passed earlier this year expanding access to post-conviction DNA testing. Quoting my colleague Nick Vilbas from the Innocence Project of Texas, the story described how, in the past, prosecutors who opposed testing "usually [did] so on the grounds that other evidence proved the defendant’s guilt." But the Legislature this year eliminated those grounds as a reason to prevent testing. Instead:
Bizarrely, Reyna continues to couch his opposition to testing in the Lake Waco murder case as respect for "jury verdicts," seemingly ignorant of or oblivious to the fact that the case ended in a plea bargain, not a jury trial. In this instance the defendant pled guilty then later recanted, "saying he falsely confessed because his attorneys told him he would almost certainly get the death penalty if he went to trial." In that light, Reyna's commentary about respect for juries comes off as weird and out of context. As Scott Greenfield noted, "the inability to test DNA at the time makes this new evidence, and there's no disrespect to the jury (even if there had been one) or the system's interest in finality when new evidence comes to light."
Bottom line, as I suspect Reyna will learn definitively when the court rules on the pending motion, the new law means it doesn't matter much whether Reyna supports or opposes DNA testing and his "guidelines" are mainly useful as toilet paper: The law no longer includes those caveats and he cannot impose them by fiat.
See related Grits posts:
Wrote Culp, "Reyna, who took office in January, said he won’t support testing requests unless a case meets a rigorous set of guidelines."
The problem is, his "guidelines" have no basis in law and in fact contradict a Texas statute passed earlier this year expanding access to post-conviction DNA testing. Quoting my colleague Nick Vilbas from the Innocence Project of Texas, the story described how, in the past, prosecutors who opposed testing "usually [did] so on the grounds that other evidence proved the defendant’s guilt." But the Legislature this year eliminated those grounds as a reason to prevent testing. Instead:
Under current law, inmates can ask for DNA testing if biological evidence in their case has never been tested, regardless of the reason why.Not only does the DA's opposition have no basis in law, the practical concerns he expressed in the story have no basis in reality: “What does any person who’s ever been pled or been tried have to lose [from requesting testing]?” Reyna said. “McLennan County would probably need another felony district court to just handle (testing) motions.” However, wrote Culp, "That’s not the experience of some of Texas’ largest jurisdictions, where DNA testing requests are generally supported by their offices, prosecutors there said." For example:
They also can ask for new analysis of previously tested evidence if newer methods that might yield more accurate results have become available since the initial testing.
“The fight shouldn’t be about getting the testing done,” Vilbas said. “The fight should be about what does the testing mean.”
Austin’s Travis County, for example, usually gets two to three requests per month. The county has a population of more than 1 million people.Judges in Waco must have pretty light caseloads if that volume would require creating a new district court. These are ignorant comments by someone who was seemingly unaware of the law until recently and now, having read it, wishes to substitute his own policy preferences for those of the Legislature.
Dallas County — which has a population of 2.4 million people and has had more DNA exonerations than any jurisdiction in the nation — gets fewer than 10 testing requests per month.
Bizarrely, Reyna continues to couch his opposition to testing in the Lake Waco murder case as respect for "jury verdicts," seemingly ignorant of or oblivious to the fact that the case ended in a plea bargain, not a jury trial. In this instance the defendant pled guilty then later recanted, "saying he falsely confessed because his attorneys told him he would almost certainly get the death penalty if he went to trial." In that light, Reyna's commentary about respect for juries comes off as weird and out of context. As Scott Greenfield noted, "the inability to test DNA at the time makes this new evidence, and there's no disrespect to the jury (even if there had been one) or the system's interest in finality when new evidence comes to light."
Bottom line, as I suspect Reyna will learn definitively when the court rules on the pending motion, the new law means it doesn't matter much whether Reyna supports or opposes DNA testing and his "guidelines" are mainly useful as toilet paper: The law no longer includes those caveats and he cannot impose them by fiat.
See related Grits posts:
Senin, 14 November 2011
McLennan DA wants law changed to restrict postconviction DNA testing
Readers may recall rookie McLennan County DA Abel Reyna declaring last month to the Waco Tribune Herald that he opposed post-conviction DNA testing because it undermines jury decisions. Rather than back off that absurd statement, Reyna is now doubling down. He seems as oblivious to the history of Texas' DNA testing statute as he has been to its actual language (he earlier opposed testing for the sole-surviving Lake Waco murder defendant but now apparently realizes he had no valid legal grounds to do so under the new statute). At least you can tell by the latest TV news story that Reyna has finally read the law, though his understanding remains dubious, at best. Reported the local ABC affiliate KVVX:
Ch. 64 prioritizes DNA testing in old cases because the identifying evidence it produces is superior to eyewitness or even confessions, sometimes proving to be a corrective to those types of evidence, which have higher error rates than has been frequently understood. It should also be added that Renya's schtick about how any and every defendant in history could seek a Ch. 64 motion is absurd on its face. There is a specific set of limiting criteria in the law ensuring testing occurs only when it might be probative. Most cases don't have biological evidence and even for those that did, in most older cases the evidence wasn't retained so there' nothing to test.
Before Governor Perry signed this year's new changes into law, Texas' old DNA testing statute did allow prosecutors to object to DNA testing based on some of the grounds Reyna mentions. The problem was, prosecutors like Williamson County DA John Bradley (from whose office Reyna recruited his first assistant because he admired Bradley's shop) used those mechanisms to fight DNA testing tooth and nail even in cases where innocence is plausible, often expending far more time and resources in opposition than would be taken up just by testing the evidence. In the Michael Morton case, Bradley and Co. spent six years opposing DNA testing until the law changed and they had no choice. When the evidence was tested, it turned out Morton was innocent and the guilty man had been running free all this time, most recently living in Bastrop. (Some of the DNA exonerations in Dallas came in cases where the DA who preceded Craig Watkins, Bill Hill, had vigorously opposed DNA testing.)
Because of cases like Morton's - and for that matter like Hank Skinner's, whose request for DNA testing presently sits before the Court of Criminal Appeals following their recent stay of his execution - Texas legislators changed the law. Giving prosecutors so many excuses to oppose DNA testing resulted in unacceptable delays and denials of justice, so the Legislature streamlined the process. Morton turned out to be innocent; if Skinner turns out to be guilty, the new law will have been no less valuable, having ensured everyone can be confident, to the Nth degree, that the state has not executed an innocent man.
Yes, some inevitably will try to game the system, but in reality the number of Ch. 64 DNA cases are diminishing, or soon will be, because so few jurisdictions retained evidence from older cases and so many of those old cases have now been vetted. There are a few remaining caches of old rape kits and other biological evidence to sort through before DNA exonerations become an historical footnote, but to the extent such testing was incorporated more on the front end, those opportunities will arise less and less often.
I've never seen hard data on the results from Ch. 64 motions, but on the morning the bill Reyna is complaining about was heard in committee at the Texas Legislature, I recall speaking to Michael Ware, an attorney who at the time (he's now in private practice) headed the Conviction Integrity Unit for the Dallas District Attorneys office. That division conducted a large-scale review of old DNA cases in conjunction with my employers at the Innocence Project of Texas, and according to Mike, the cases where they commissioned testing came back roughly 1/3 each into three categories: Excluding the defendant as a suspect (i.e., exonerating them), proving their guilt, or inconclusive. So in a majority of Ch. 64 cases, if those estimates can be generalized, you wouldn't see an innocent person walk free. But after debating the issue for years, on the advice of the Tim Cole Advisory Panel on wrongful convictions, the Legislature decided it's worth blowing by critiques like Mr. Reyna's to insist on testing for the sake of people like Mr. Morton who're innocent, imprisoned, and have no other hope for salvation.
In other words, the state for nearly a decade since Chapter 64 first became law has been having the debate Mr. Reyna now wants to engage in. He's just shown up late for the party, after the topic's been vetted and the decisions have already been made. The time for whining, though, is past.
My advice: Now that you've read the law and know (more or less) what it says, Mr. Reyna, just stop issuing press statements about things you don't understand and test the damn evidence.
RELATED: From the Texas Independent, "Despite deadline in new law, few Texas agencies reported count of untested rape kits."
See related Grits posts:
District Attorney Abel Reyna says a change in law allows convicted criminals to file unnecessary requests for DNA testing to reverse their conviction.
"Technically you have any and every defendant who ever pled to a crime or was convicted of a crime potentially could file a post-conviction DNA motion," Reyna says.The change in Chapter 64 of the Code of Criminal Procedure could mean more money spent carrying out the requests, which are unlimited, but cost isn't the only problem worrying Reyna."What concerns me most as District Attorney is that there is absolutely nothing in Chapter 64 with regard to victims and their families," Reyna says.A new motion in a case closed decades ago could mean new heartache for the family of a victim."A defendant could use Chapter 64 to continue to torment a victim's family," Reyna says.The root of the problem, Reyna says, is that nothing is at stake for the prisoner who files the request. "They can just file it, and it comes back, and it's them and they can just say, 'Ah, darn,' and continue serving their sentence," he says. ...
If Reyna had been in a coma these past few years, maybe you could forgive him. But he's been mostly conscious, so he should know about all the recanted confessions and mistaken eye witnesses that litter recent history, frequently only uncovered because of the Ch.64 postconviction DNA testing he now decries. (Texas' statute first took effect in 2001 and was revised in 2011 to minimize DAs' ability to oppose testing). About a quarter of DNA exonerations include confessions or guilty pleas later proven false by DNA. Ditto, and then some, for eyewitnesses: roughly 3/4 of DNA exonerations included faulty eyewitness identifications.Reyna supports post-conviction DNA testing and the justice it can yield, but he says there needs to be checks and balances to prevent abuse."Was there a confession? Several eye witnesses? Was it on video tape?" Reyna asks.Those conditions should be considered, he says, on a case-by-case basis to filter out manipulation of the system. He also says the DNA request must actually relate to the charge in each conviction.
Ch. 64 prioritizes DNA testing in old cases because the identifying evidence it produces is superior to eyewitness or even confessions, sometimes proving to be a corrective to those types of evidence, which have higher error rates than has been frequently understood. It should also be added that Renya's schtick about how any and every defendant in history could seek a Ch. 64 motion is absurd on its face. There is a specific set of limiting criteria in the law ensuring testing occurs only when it might be probative. Most cases don't have biological evidence and even for those that did, in most older cases the evidence wasn't retained so there' nothing to test.
Before Governor Perry signed this year's new changes into law, Texas' old DNA testing statute did allow prosecutors to object to DNA testing based on some of the grounds Reyna mentions. The problem was, prosecutors like Williamson County DA John Bradley (from whose office Reyna recruited his first assistant because he admired Bradley's shop) used those mechanisms to fight DNA testing tooth and nail even in cases where innocence is plausible, often expending far more time and resources in opposition than would be taken up just by testing the evidence. In the Michael Morton case, Bradley and Co. spent six years opposing DNA testing until the law changed and they had no choice. When the evidence was tested, it turned out Morton was innocent and the guilty man had been running free all this time, most recently living in Bastrop. (Some of the DNA exonerations in Dallas came in cases where the DA who preceded Craig Watkins, Bill Hill, had vigorously opposed DNA testing.)
Because of cases like Morton's - and for that matter like Hank Skinner's, whose request for DNA testing presently sits before the Court of Criminal Appeals following their recent stay of his execution - Texas legislators changed the law. Giving prosecutors so many excuses to oppose DNA testing resulted in unacceptable delays and denials of justice, so the Legislature streamlined the process. Morton turned out to be innocent; if Skinner turns out to be guilty, the new law will have been no less valuable, having ensured everyone can be confident, to the Nth degree, that the state has not executed an innocent man.
Yes, some inevitably will try to game the system, but in reality the number of Ch. 64 DNA cases are diminishing, or soon will be, because so few jurisdictions retained evidence from older cases and so many of those old cases have now been vetted. There are a few remaining caches of old rape kits and other biological evidence to sort through before DNA exonerations become an historical footnote, but to the extent such testing was incorporated more on the front end, those opportunities will arise less and less often.
I've never seen hard data on the results from Ch. 64 motions, but on the morning the bill Reyna is complaining about was heard in committee at the Texas Legislature, I recall speaking to Michael Ware, an attorney who at the time (he's now in private practice) headed the Conviction Integrity Unit for the Dallas District Attorneys office. That division conducted a large-scale review of old DNA cases in conjunction with my employers at the Innocence Project of Texas, and according to Mike, the cases where they commissioned testing came back roughly 1/3 each into three categories: Excluding the defendant as a suspect (i.e., exonerating them), proving their guilt, or inconclusive. So in a majority of Ch. 64 cases, if those estimates can be generalized, you wouldn't see an innocent person walk free. But after debating the issue for years, on the advice of the Tim Cole Advisory Panel on wrongful convictions, the Legislature decided it's worth blowing by critiques like Mr. Reyna's to insist on testing for the sake of people like Mr. Morton who're innocent, imprisoned, and have no other hope for salvation.
In other words, the state for nearly a decade since Chapter 64 first became law has been having the debate Mr. Reyna now wants to engage in. He's just shown up late for the party, after the topic's been vetted and the decisions have already been made. The time for whining, though, is past.
My advice: Now that you've read the law and know (more or less) what it says, Mr. Reyna, just stop issuing press statements about things you don't understand and test the damn evidence.
RELATED: From the Texas Independent, "Despite deadline in new law, few Texas agencies reported count of untested rape kits."
See related Grits posts:
Sabtu, 15 Oktober 2011
McLennan DA fights DNA testing because exonerations override juries
Another Texas District Attorney, this time in Waco, is opposing post-conviction DNA testing in a possible innocence case. Reported Cindy Culp at the Waco Tribune Herald (behind paywall)
When Reyna was elected he announced he intended to model how he ran his office on John Bradley's shop in Williamson County and hired one of Bradley's prosecutors as his first assistant. So it's not surprising to see him fighting DNA testing, just like John Bradley did for years in the Michael Morton case. But it's remarkable that he'd mimic Bradley's stance on post-conviction DNA testing after all that's happened recently in Williamson County. He's unlikely to prevail in court and if the DNA evidence proves exculpatory, Mr. Reyna will find himself in the crosshairs just like his role model from a few miles south down I-35.
MORE: From Simple Justice.
The McLennan County District Attorney’s office will oppose a request for new DNA testing in the decades-old Lake Waco triple murders case.Remarkably, DA Abel Reyna said he prefers erroneous jury decisions over facts if they prove innocence:
Waco attorney Walter M. Reaves filed a motion asking for the testing Wednesday. It is part of an effort to exonerate Anthony Melendez, the only living defendant in the 1982 slayings of three teenagers.
In the motion, Reaves argues the testing is warranted because DNA analysis was not available when Melendez was convicted. He pleaded guilty but has since recanted, claiming he falsely confessed because his lawyers told him he would almost certainly get the death penalty if he went to trial.Waco attorney Walter M. Reaves filed a motion asking for the DNA testing in the Lake Waco trople murder case Wednesday. It is part of an effort to exonerate Anthony Melendez, the only living defendant in the 1982 slayings of three teenagersThe motion does not ask the state to pay for the DNA testing. It only asks that 54th State District Judge Matt Johnson order the testing be done.
Reyna said every request for post-DNA conviction must be carefully considered.That seems like a bizarre stance for someone charged in state law with seeking justice. If the jury convicted an innocent person, their decision should be overridden. In any event, the Texas Legislature this year eliminated most grounds for prosecutors to oppose post-conviction DNA testing where the results might be probative, so I expect the DA's opposition will fail and the testing will eventually go forward.
But in general, he doesn’t support such testing because it overrides what a jury decided, he said.
When Reyna was elected he announced he intended to model how he ran his office on John Bradley's shop in Williamson County and hired one of Bradley's prosecutors as his first assistant. So it's not surprising to see him fighting DNA testing, just like John Bradley did for years in the Michael Morton case. But it's remarkable that he'd mimic Bradley's stance on post-conviction DNA testing after all that's happened recently in Williamson County. He's unlikely to prevail in court and if the DNA evidence proves exculpatory, Mr. Reyna will find himself in the crosshairs just like his role model from a few miles south down I-35.
MORE: From Simple Justice.
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