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

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

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

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

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

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

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

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

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

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

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

Central Texas races hinge on public perception of prosecutorial influence

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

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

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

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

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

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

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

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

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

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

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

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

JAIL POPULATIONS DECLINING MORE RAPIDLY THAN PRISONS

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

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

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

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

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

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

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

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

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



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

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

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

See related, recent Grits posts:

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

Why I hate PolitiFact, DA campaign edition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Showdown brewing between Travis judge, state health agency over competency restoration

Disappointing, but not unexpected: The State of Texas says it cannot comply with Judge Orlinda Naranjo's court order requiring state hospitals to accept pretrial defendants declared incompetent by the courts within 21 days, and also asked the judge herself to reconsider her decision, reports Andrea Ball at the Austin Statesman ("State fights order to move prisoners requiring psychiatric care into hospitals," March 29):

State officials say they can't obey a court order forcing them to move more than 150 mentally incompetent prisoners to psychiatric hospitals by June 1 because they don't have enough space, staff or money to do so.

The Texas attorney general's office has asked Austin-based state District Judge Orlinda Naranjo to review her January decision forcing the Department of State Health Services to start moving all current "forensic commitments" to state psychiatric hospitals by June 1. All such prisoners who arrive after that date would have to be moved to a psychiatric hospital within 21 days of a judge's order. Forensic patients are people accused of crimes who have been deemed incompetent to stand trial because of mental illness.

Complying with the court order would cost between $39 million and $55.2 million, according to a motion for a new trial filed by the attorney general's office this month.

"The short timelines set forth in the court's order makes it physically, fiscally and logistically impossible for DSHS to comply and indicates a lack of appreciation for the magnitude of the task and the complications inherent in implementing the terms of the order," the state wrote in its motion.

The attorney general has also appealed the ruling with the state's 3rd Court of Appeals.

See prior, related Grits posts:

• BSG (Broke State Goverment) seeking forensic mental health beds
• Grits commenter played role initiating lawsuit over timely competency restoration
• Judge: State mental hospitals must take incompetent inmates within 21 days
• 'Neither punished nor treated, just jailed'
• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jury: No liability, this time, but improvements needed in MH treatment at Travis County Jail

In Travis County, a federal jury declared that, although jailers weren't the "proximate" cause of Rachel Jackson's death, but there were areas where the county's operation of its jail needs to improve. Reported Steven Kreytak at the Austin Statesman:

A federal jury in Austin ruled [Friday] that neither the actions of Travis County officials nor of a former jail psychiatrist caused the death of a mentally ill woman found dead in her cell in 2008. But in an extraordinary move, the jury issued a statement calling on the county to improve the operations of its jails.

Following the jury’s decision in the lawsuit brought by the family of 21-year-old Rachel Jackson, who died while in “psych lockdown” in the Del Valle jail, U.S. District Judge Sam Sparks agreed that the panel could read a statement into the record.

“While we cannot find that Travis County proximately caused the death of Rachel Jackson,” the foreman said while standing in the jury box, “we do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional center.”

Outside the courthouse, jurors declined to elaborate on the statement to a reporter.

In too many cases, jails and prisons substitute for mental health beds, and that appears to be what happened here, with fatal results. Jail facilities weren't created for this purpose, jail staff for the most part aren't trained for it, and in general the criminalization of mental illness has become one of the darkest stains tainting modern society. I'll be interested to learn more about the concerns underlying jurors' public statement.

RELATED: From Patricia Kilday Hart: "Help mentally ill on outside so they don't end up inside."

Former Austin crime lab scientist says reports issued without testing

A fired scientist at the Austin PD crime lab is making serious, public allegations, including that the lab issued reports in drug cases without performing any lab testing. Reported the Austin Statesman ("Fired scientist files complaint against Austin police crime lab," Jan. 12):

A fired former Austin Police Department crime lab scientist has filed a complaint against the lab with the Travis County district attorney's office, alleging lab administrators do not have proper accreditation and that drug evidence was not analyzed before reports were submitted.

The complaint, filed in December, has prompted District Attorney Rosemary Lehmberg to ask the Texas Department of Public Safety to review the charges.

APD says the complainant, a scientist named Debra Stephens, is a disgruntled ex-employee seeking to bring discredit on the agency. Stephens, for her part, says she was fired last year in retaliation for raising these problems. "Stephens said Wednesday evening that she raised concerns about the lab last January or February with department officials and was then fired in April. She said she was fired because of her allegations." Issuing reports without having done testing was definitely the most serious allegation:

Stephens wrote in her letter to [Travis County DA Rosemary] Lehmberg that "results are being reported and charges are being filed without any analysis being conducted at all."

[Defense attorney Dan] Dworin said if that proves to be true, "that's a God-awful scandal."

Stephens also estimated that hundreds of other drug cases analyzed by the Police Department's crime lab since 2005 were "analyzed without regard to laboratory protocols."

These, she wrote, came in "rush" cases.

Defense lawyers interviewed suggested that the "rush" cases were required to meet prosecutors' accelerated prosecution schedule under the so-called Rocket Docket. Under that program — which initially was implemented for low-level drug cases to clear space in the crowded Travis County Jail — prosecutors present to defendants a summary of the evidence in the case, including the drug testing report, along with a plea bargain offer within about two weeks of an arrest.

Defense lawyer Amber Vazquez Bode said that following protocol is essential in such cases because it ensures accuracy.

"It's a pretty big deal if in fact a substance was not crack cocaine and you are sitting in state jail for a year," she said.

Dworin and Vazquez Bode said it's too early to predict whether the outcomes of any prosecutions or the course of any pending cases will be affected by Stephens' letter.

The Department of Public Safety said in a letter to the DA's office that they could reach no conclusion about reports being issued without testing because of a lack of record keeping, though they note that "The Austin Police Department lab policy does not specify when the review must be performed, nor did any case records indicate review dates. Therefore, no judgments on this allegation can be made." Further, "The documents provided on two of the cases ... do not show any testing before the 'Preliminary Report' was emailed.," though DPS recommended further investigation before concluding that was a problem. But it's fair to say the official DPS review so far has not debunked Ms. Stephens' most explosive claims and in fact slightly bolstered them.

Notably, tomorrow the Forensic Science Commission will be discussing a somewhat similar episode from the El Paso crime lab, where an incompetent labworker apparently signed off on test results without performing the appropriate procedures, or in some cases interpreting the results incorrectly; they were put on probation by the national accrediting body but recently taken off that status. From the media accounts, the Austin episode, if the allegations are true (a big if, at this early stage), the malpractices described seem to stem more from bureaucratic malaise than any one person's specific incompetence, but the result is the same: Test results are issued by the lab without any justifiable, scientific basis.

These allegations come on the heels of reports last fall of high error rates in DWI blood testing at the Austin PD crime lab, which is a growing concern in light of so-called "no refusal" policies and the tendency of Austin police to arrest people for DWI when the charges are unsustainable.

Earlier, in 2010 an Austin crime lab worker alleged that quality assurance personnel at the lab were underqualified and that staff were threatened with retaliation if they reported problems in the lab. Though an investigation said claims were unfounded, at the time Cecily Hamilton, a former crime-lab scientist in the DNA division, said in a public statement that "APD is covering up the fact that their DNA lab has issues and that they performed a bogus internal investigation and they are trying to discredit and slander me so that people will not listen when I tell the truth about what occurred during my employment there."

Similarly, the DA and police department are circling the wagons and seeking to discredit Ms. Stephens in the media, but that's a short-sighted approach. If she turns out to be right, and the DPS letter doesn't contradict that possibility - they're setting themselves up for bigger future problems. And if she's wrong, a more thorough investigation should reveal it; there's no call for a rush to judgment. Generally, discrediting one's critics works better if you're able to show someone is a liar; just saying it over and over can only fend them off for so long. So far, Ms. Stephens' central allegation of misconduct has not been disproven, at least by DPS' investigation.

When the Forensic Science Commission dismissed an earlier, more generic complaint against the Austin crime lab last year, to my knowledge it did not include these hot-button allegations of fraudulently issuing reports without having done testing, so Grits won't be surprised if the FSC decides take up this issue, nor if the Austin allegations are mentioned tomorrow in the context of the Commission's discussion tomorrow of the El Paso crime lab.

Maybe the Forensic Science Commission needs to take up Ms. Stephens' allegations. The situation needs to be investigated by somebody who doesn't begin already knowing the conclusions they want to reach, either for or against the crime lab, and then cherrypick evidence to support it. And from their defensive public comments I don't trust APD nor the Travis County DA - who's currently in the midst of a hotly contested primary battle - to perform that function without shifting into CYA mode.

RELATED: For anyone interested in more detail, Grits has uploaded Stephens' letter to the DA onto Google documents, as well as DPS' letter to the DA's office. Thanks to a reader for passing them along.