Will Cowtown cell-phone trackers be used based on probable cause, or to obtain it?

The Fort Worth PD insists it was a misstatement, but an internal memo on its new Kingfish cell-phone tracking system said the device could be used for "developing probable cause." Previously the department had said they would only use the device after obtaining a search warrant, which would require obtaining probable cause before using it. Reported a local TV station:

A city memo describing the system's use sounds to some like police will track people's cellphones without first getting a warrant.

"The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders," the memo said.

The "developing probable cause" phrasing caught the attention of the American Civil Liberties Union. Police need to obtain a search warrant first, the organization said.

"Having a neutral party like a judge review and sign a warrant is the safeguard for individual privacy rights that prevents the police from simply using whatever tools are at their disposal to peek at, observe, watch or invade the privacy of folks at will," said Lisa Graybill, ACLU legal director.

But Fort Worth police say the description was misleading. The department always intended to obtain a search warrant before tracking someone, police said.

The department also said that if an arrest came from tracking someone, the district attorney, defense attorneys and a judge would all review the case.

If it was just a misstatement and they really do plan to get warrants, fine. If police intend to use the devices BEFORE they have probable cause, that's a problem. At a minimum they need some written policies on the subject. This was a consent-agenda item which wasn't discussed at all when the City Council approved it, and it sounds like the department's plans for the device and safeguards against abuse aren't as well-developed as they should be.

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

On preconviction shaming and the role of the prosecutor

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

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

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

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

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

This contradicts what Alpert states on the website:

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

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

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

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

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

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

Does pre-conviction shaming deter DWI or just obliterate presumption of innocence?

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:

Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

"I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said. "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"

Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

Tarrant specialty court focused on family violence by youth on 'nonintimate' relatives

The Fort Worth Star-Telegram has an article ("Tarrant County court program helps youth in trouble with the law," Nov. 27) describing a special family violence court called:

Youth Offender Diversion Alternative, or YODA, [which] is aimed at addressing the rise in Tarrant County of family violence cases involving people ages 17 to 25 and nonintimate relatives such as mothers, fathers or siblings.

A combined effort of Judge Jamie Cummings' court in Tarrant County and the University of Texas at Arlington's Center for Clinical Social Work, it is funded by a $92,000 grant from the Amon G. Carter Foundation.

That's the first time I've heard of the specialty court concept aimed at this particular offender cohort. Of defendants assigned to the court,

Most have clean records but have other problems, such as with school, work or family relationships.
Nearly two-thirds are male, and most of their assaults involved either their mother (43 percent) or sister (17 percent). Of the young women assigned to the program, most involved assaults on a sister (25 percent) or their father's partner, such as a stepmother or girlfriend (19 percent).

The program accepts people up to age 25, but more than two-thirds are 17 to 19. If they complete the program, the charge will be erased from their record as if it never happened.

So far, their aggregate outcomes appear positive, though the programs barely been operating more than half a year so far:

Since the program began in March, 54 participants have been diverted into the program, including eight who signed on last week. Nine have been removed from the program, largely for poor attendance in one-on-one counseling.

A preliminary evaluation of the program after about six months shows that participants who completed the program decreased their aggression and abuse of alcohol and drugs, and increased mental health, resilience, hope and their ability to find solutions to their problems. None of the 20 people who completed the program have committed another offense.

The program was begun with outside grant funding:

YODA is part of the Innovative Community Academic Partnership, or iCap, which is funded by grants from the Carter Foundation.

"It occurred to me that we needed to find a different way to address the violence in the community," said Sheila B. Johnson, a director of the Carter Foundation and granddaughter of Amon G. Carter. "They really were basically OK kids but they didn't have a chance."

The program is funded through December, and tentative funding has been lined up to extend the program through 2012.