Let's get serious about innocence

The Chron had a story yesterday about an "Innocence Summit", which focused on matters of wrongful convictions and what can and must be done about them. The first thing to remember here is that this isn't an abstract issue:

Nine wrongfully convicted men who spent a collective 148 years in Texas prisons met with a select group of prosecutors, judges and police chiefs in the Senate chamber Thursday to urge the state to establish a commission to investigate claims of innocence.

"I'm crying out for mercy today for someone who may still be in prison," said James Curtis Giles, who served 10 years in prison for rape before DNA testing proved him innocent.

[...]

Alejandro Hernandez said he spent 13 years in prison for murder based on a faulty police photo lineup. He said some innocent people could avoid conviction if a person not involved in the investigation handled photo lineups so they would not know which person was the suspect.

Billy Smith fought for five years to have the DNA test that exonerated him and prompted his release from prison after serving 19 years of a life sentence for rape that was based solely on a bad eyewitness identification. He said the state needs to provide better compensation for people who have been wrongfully convicted.

"I'm a victim. Make no mistake about that," Smith said.

Grits has two informative reports from the summit, which offer some hope for movement on the issue, plus a post of changes to lineup procedures in Dallas, which will help prevent future injustices.

New York criminal defense lawyer Barry Scheck, who directs the Innocence Project that has represented many of those freed in Texas, said "enormous progress has been made" in Texas.

Scheck praised Houston Police Chief Harold Hurtt for making major improvements in the Houston crime lab. But Scheck said every police department in Texas needs to be improving its handling of eyewitness identifications as well as the collection of DNA evidence.

Hurtt said the state should consider funding regional crime labs so that the police are not in charge of them and they can be run on a more professional and efficient basis.

It always comes down to money - or really, given our current state of surplus, to how we prioritize spending that money - doesn't it? If we devoted one tenth of the resources to things like independent regional crime labs that we did to building more prisons, we wouldn't need to hold Innocence Summits. We'd finally be able to say that we really are doing the best we can to prevent these tragedies. And by the way, an independent crime lab has been a campaign theme of Clarence Bradford since he first announced his candidacy.

Dallas County District Attorney Craig Watkins said efforts by his office to review innocence claims have restored confidence in the criminal justice system locally. Watkins said that several years ago drug dealers knew Dallas juries would not convict them because of a police evidence-planting scandal.

Watkins said one of his prosecutors recently was worried he could not get a conviction in a murder case because of publicity surrounding the wrongful-conviction release of 27-year inmate James Lee Woodard. But he said the jury took only five minutes to convict because confidence in the Dallas criminal justice system has been restored.

Maybe you have confidence in the criminal justice system, but if you've noticed that the vast majority of the people who are now being released from prison after being exonerated by DNA evidence are people of color, you might understand why not everyone shares that confidence.

State Sen. Rodney Ellis, D-Houston, has been leading the effort to have an "innocence commission" formed in Texas. Ellis told the gathering that he has asked Gov. Rick Perry and other state leaders to establish such a commission but has not heard back from them.

Perry's top criminal justice adviser, Mary Anne Wiley, said the governor shares Ellis' concerns on issues such as improving the legal defense for people on trial and separating control of crime laboratories from the control of police departments. But she said he does not want to create another layer of government in the criminal justice system.

I'm sorry, but if the best Rick Perry can do is wring his hands and fret about "another layer of government", whatever that means, then it's a lie to say he shares Sen. Ellis' concerns. If he actually did share those concerns, he'd want to do something about them. Until such time, he remains part of the problem. And if you read through Grits' posts, you'll see that the Governor's intransigence is putting him increasingly at odds with members of his own party. Ensuring that the guilty are convicted and the innocent are not is not and should not be a partisan issue.

Kelly Siegler resigns

No surprise.

Kelly Siegler, a longtime prosecutor at the Harris County District Attorney's Office who lost her bid for the top job there in April's primary elections, resigned today.

Siegler, 45, who had worked at the office since 1987, submitted her resignation letter to District Attorney Ken Magidson early this afternoon. It takes effect immediately.

Siegler said she is looking forward to working as a special prosecutor, trying a capital murder case in Wharton County this summer.

Siegler will work alongside Wharton County District Attorney Josh McCown as they prosecute an illegal hunter in the shooting death of Texas Parks and Wildlife game warden Justin Hurst, 34, following a car chase and shootout last year.

"This opportunity came up to work on the case in Wharton County, which is basically home to me," said Siegler, a Matagorda County native. "It's what I love doing. It's what I'm good at."

Siegler has no plans beyond that just yet. She said she would love to work as a special prosecutor on other cases. She has also received job offers from civil law firms and other district attorney's offices, she said.

Asked if she could pursue a career as a criminal defense lawyer, Siegler said, "Never say never."

Siegler's resignation came as a surprise, said Scott Durfee, general counsel and spokesman for the district attorney's office.

It's not a surprise to me, anyway - I'd have thought it would be too uncomfortable for her to stay after losing the primary, regardless of what happens in November, and once you realize that, why wait? As for Siegler becoming a defense attorney, I'll let Mark Bennett handle that. I can't say I'm sorry that Kelly Siegler won't be our next DA, but I do respect the work she's done, and I wish her well in whatever she does do next. Good luck to you, Kelly.

The Chron on jail overcrowding

The Chron hits all the right notes on the Harris County jail overcrowding problem.

Holding 10,245 inmates as of midnight Tuesday, the Harris County Jail is so crowded that Sheriff Tommy Thomas has already sent 600 inmates to a lockup in Louisiana and will be sending 1,130 more to facilities in that state.

The Texas Commission on Jail Standards recently found the Harris County Jail in compliance with all applicable standards. However, the jail is certified to hold only 9,400 inmates, almost 2,000 fewer than have been recently crowded into its four facilities.

The overcrowding endangers inmates' health. Recently 80 inmates contracted chickenpox or shingles, which share a common virus. The prisoners were quarantined for 21 days and denied visitors. The spread of tuberculosis is a constant worry.

For about 17 inmates per year, detention in the Harris County Jail is a death sentence. They die most often from the failure to receive medication and treatment for illness in a timely fashion.

Some die during violent encounters with their jailers, who are frequently understaffed. Others are badly beaten but survive. Most of the deceased were never convicted of the crime with which they had been charged.

A large part of the jail overcrowding problem resides with the elected judges here. They don't make good use of pre-trial release and other jail diversion programs that allow minor, nonviolent offenders to return to their jobs and families while awaiting trial.

Some judges set up defendants to fail, making the terms of their probation so onerous that successful completion is unlikely. A minor infraction can send a probationer back to jail and then to prison to serve a long sentence.

The Legislature is also to blame. Over the years it has made too many minor offenses felonies. Judges are allowed to set high, unattainable bail, dooming many indigent inmates to months or years of jail time before they have a chance to make their case in court.

Voters in November rejected a bond issue to expand the jail by 2,500 beds, rejecting the notion of placing more Harris County residents needlessly and pointlessly behind bars. That leaves the criminal justice system here with the duty to reduce jail overcrowding by decreasing the number of inmates.

The only thing that needs to be added is that just as the voters took corrective action last year by rejecting the jail bond, they have that chance again this year in November, when many of the judges who are a big part of the problem are up for re-election. I hope that when the Chron gets around to doing its endorsements this fall, the editorial board will remember what it said in the spring.

UPDATE: Grits has more.

The Galveston option

One possible option for dealing with the overcrowded jails, at least until a more permanent solution can be implemented: Ship some inmates to Galveston.

Harris County Judge Ed Emmett said he planned to speak with Galveston County Judge James Yarbrough about using his empty 500-bed lockup.

"If we've got a jail next door, it sure would make a lot of sense if we could do it," Emmett said.

[...]

Galveston County vacated its old jail in 2006, after building a new one as part of a $99 million criminal justice complex.

Yarbrough said the old facility was in fine shape and met all state standards when it was operational, but was too small for the 900 to 1,000 inmates that Galveston County had been holding in recent years.

Both county judges said it was too early to estimate what it would cost to lease and staff the Galveston jail. Yarbrough said he probably would not be able to provide detention officers, so Harris County would have to use its own guards or pay a private contractor. But he said he would offer the best deal he could arrange.

"We can't just give it to them, but certainly Harris County's been a good friend on a whole number of fronts," Yarbrough said. "We certainly would, hopefully, make a fair deal for everybody."

Note that this is only a solution if jailers are provided by Harris County. Given that the county has had problems hiring enough jailers for its own lockups, that may be an obstacle. Or it may just make it too damn expensive. In any event, it's just another Band-Aid fix that doesn't address the root cause of the problem. It's better than outsourcing to Louisiana, but it's still not the right answer.

The real fix for the jail overcrowding blues

I identified one simple fix for the Harris County jail overcrowding problem yesterday, but there is another, hopefully more permanent solution, one that can be implemented in six months' time. As Grits puts it:

As long as Sheriff Thomas, Chuck Rosenthal, and Houston's current crop of ex-prosecutor judges runs the show, however, such a review would be pointless. The problems were identified years ago, the solutions all proposed, but if the elected people currently in charge won't embrace them, what can you do?

Rosenthal is gone, though his philosophy will remain until someone with a different perspective is elected. The judges are a big part of this problem, probably the biggest. But no one in county government has held them responsible for their actions, choosing instead to throw money at it. Now the voters can and hopefully will do that job this fall.

Abbott makes hash of needle-exchange program

Ridiculous.

The only government-funded needle exchange program in Texas was quashed before it could even begin, after Attorney General Greg Abbott said today that the law wasn't clear enough for a new Bexar County pilot program to move forward.

The decision means that San Antonio prosecutors are likely to move forward with their case against a 73-year-old chaplain, Bill Day, who was ticketed for passing out needles earlier this year.

Prosecutors have said that drug charges against Mr. Day, who is also living with AIDS, and two others might be dropped if Mr. Abbott decided that legislation creating the program - which passed with support from both Republicans and Democrats - was strong enough to bypass the Texas Controlled Substances Act, which outlaws paraphernalia.

Abbott's opinion is here. I'm in agreement with Grits:

I'm not a lawyer, but I find the stance ridiculous. The Legislature authorized a needle exchange pilot in Bexar County, which by definition involves allowing needles to be exchanged with addicts. But according to Abbott, because:

the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act--but did not do so here--this office can neither assume nor legislate such an intent.

So in other words, Abbott believes the Legislature intended to allow a needle exchange program in San Antonio but simultaneously intended for participants - both addicts and government employees - to be prosecuted for engaging in it. That's angeringly stupid, but there's little to be done about it until the Legislature gets back to town.

It's also sadly typical of our Attorney General, who has a nasty habit of putting politics ahead of pretty much everything else he does. The needle-exchange bill was a bipartisan effort and is a proven lifesaver. Not that any of that matters to him.

What a waste. Both Abbott and Bexar County DA Susan Reed should be ashamed of themselves. I hope fixing this petty problem is a top priority for the next Lege. Read on for a press release from State Rep. Ruth Jones McClendon, who was one of the authors of the needle exchange bill.

State Representative Ruth Jones McClendon (D-House District 120) announced today that Attorney General Greg Abbott has issued his official opinion concerning the Bexar County disease-control and prevention pilot program, which would have authorized a ground-breaking needle exchange pilot program in Bexar County. The Opinion stated that the pilot program could proceed without the needle-and-syringe exchange component, although it had been authorized in the enabling legislation; however, if the County proceeds with the safe needle exchange program, the opinion states that participants in the program "would appear to be subject to prosecution."

Representative McClendon said, "Obviously, I am terribly disappointed that the safe needle exchange project cannot roll out this year as part of the overall disease-control pilot program, because the outcome would have been much more effective in saving thousands of lives and saving millions of taxpayer dollars at the same time. The concept of rehabilitation and restorative justice needs to be promoted as a meaningful part of our criminal justice system. This next Session, one of the first Bills I will file will be legislation allowing Bexar County and other Texas communities to implement safe needle exchange programs to prevent the spread of infectious diseases such as HIV-AIDS and Hepatitis C, for which there are, unfortunately, no vaccines available."

McClendon also said, "I want to offer my sincere thanks publicly to Senator Jeff Wentworth for taking the lead on this matter and submitting the opinion request. Controlling the spread of infectious diseases such as Hepatitis C and HIV-AIDS obviously would benefit the public at large, the medical community, the courts, and the taxpayers of Bexar County. I also want to thank Judge Nelson Wolff, the County Commissioners and community development staff, Senator Bob Deuell, the Texas Medical Association and Dr. Janet Realini, Dr. Bill Martin, the volunteer consultants, and the many other persons and organizations who advocated and worked so diligently to promote legislative and community approval for this program."

Senate Bill 10, known as the Omnibus Medicaid Bill, authorized a disease-control pilot program in Bexar County, specifically targeting infectious diseases such as hepatitis C and HIV-AIDS, which cost the state around $110,000,000 per year. The pilot program arose from a successful amendment to Senate Bill 10 by Representative McClendon. S.B.10 passed the Legislature and was signed by the Governor, enabling Bexar County to operate a safe needle-exchange outreach effort. The law was scheduled to take effect September 1, 2007, but public implementation was put on hold after District Attorney Susan Reed raised objections in August, saying that it would be illegal to conduct such a program because, in her opinion, the law was defective. The County Commissioners decided to fund the planning phase and engage a coordinator for the program while awaiting the opinion from the Attorney General.

Senator Jeff Wentworth, Chair of the Senate Judiciary Committee (R-Senate District 25) had submitted the request for the AG opinion in regard to part of S.B.10. The issues raised against the needle exchange challenged the meaning and effect of the pilot program statutory language in regard to trial procedure matters and the legal defenses that could be presented in court. As Chair of the Senate Jurisprudence Committee, Senator Wentworth submitted the opinion request, to determine whether this program could go forward as intended by the Legislature.

The jail overcrowding blues, part whatever

It's the same old story.

With the Harris County Jail already filled to the brim and an influx of inmates expected this summer, the sheriff's department is asking Commissioners Court for permission to send another 1,130 more inmates to Louisiana facilities.

Harris County already incarcerates 600 inmates at a private detention center in northeast Louisiana at a cost of $9 million a year.

The proposal on today's agenda calls for sending 130 more inmates to that facility and negotiating with other lockups for another 1,000 beds on an as-needed basis. At $38 per inmate per day, those additions could bring the annual cost for incarcerating inmates outside Harris County to $24 million.

For purposes of comparison, that token property tax cut from last year is costing the county $25 million a year.

As of Monday, a little more than 11,000 inmates were being housed in the jail's four facilities, sheriff's department spokesman Capt. John Martin said.

The Harris County Jail is certified to hold a maximum of 9,400 inmates. The state jail commission temporarily has authorized the detention of 2,000 more inmates on so-called "variance beds," nonstandard metal frame bunks on the floor. The county originally was granted permission for 1,000 extra bunks last year, but has had to ask for increases several times in the past year, Martin added.

[...]

The county began shipping inmates to the West Carroll Detention Center in Epps, La., last summer in what was described as an emergency measure for dealing with a seasonal surge in the inmate population.

But the population never declined, as it typically does in the fall and winter, Martin said, forcing officials to scramble for space as another summer approaches.

To meet staffing requirements, the Sheriff's Office spent $29 million for overtime at the jail in the fiscal year that ended in February. Most guards are working double shifts more than once a week, Martin said, raising concerns about their health and safety.

"It's a huge concern for us the number of hours that people can physically work without just becoming burnt out or before they get to a point where they're not really as aware as we need for them to be on the job," he said.

[...]

Commissioner Sylvia Garcia said the proposal appears to be the only viable option. But she said she also thinks there needs to be a full-scale review of the criminal justice system, from arrest and booking to prosecution and sentencing.

"That's a lot of money for short-term solutions," she said.

I think we've covered this subject pretty thoroughly, so I'll try to avoid giving that dead horse any more lashes. But if Commissioners Court decides it really does want to take these out-of-control costs seriously, here's a recent reminder from the Chron as to one step that could have been taken all along:

Over the past 15 years, the use of personal bonds has all but disappeared in low-grade felony cases. Most Harris County district court judges say they would consider them for the right defendant, but the numbers suggest the "right" defendant rarely appears.

It has not always been this way. In 1994, personal bonds accounted for the release of almost 9,000 people from the Harris County Jail, including more than 1,800 facing low-grade felony charges, frequently drug possession.

A decade later, only 109 felony defendants were let out of jail without posting a cash bond. By 2007 that number was up slightly -- to 153 -- which translates into less than one half of one percent of the 36,176 people in jail interviewed by pretrial services officers.

That right there would be enough to solve the problem and save us all millions of dollars. We can still do something about it, so as to ensure this expensive outsourcing of inmates really is a short-term solution and not an ongoing occurrance. The answers are well known. We just have to apply them.

The next frontier for innocence

Grits says that now that the number of innocence-related cases for which DNA evidence still exists are rapidly declining, the next frontier may be arson convictions:

[Jeff Blackburn of the Innocence Project of Texas] predicted that beyond DNA cases, which are increasingly few and far between (because most cases have no DNA evidence, and most DNA evidence collected wasn't preserved), arson cases could constitute the next wave of exonerations in Texas. More than 800 people are in Texas prisons over arson convictions, he said, and dozens if not hundreds were convicted based on forensic science that's no longer considered valid.

He goes on to cite an example of a Texas man who was executed on what would now be considered junk science. Give it a read, it's pretty sobering. These cases won't be anywhere near the slamdunk that DNA exonerations have been because of the complexity involved, but they deserve the same level of examination because the underlying problem is the same. We have more and better information now than we did at the time, and that must lead us to question the results we got back then.

Mrs. Medina released on bail

As expected.

The wife of Texas Supreme Court Justice David Medina, accused of burning down the couple's Spring home and damaging two others, surrendered to authorities Thursday and was released on bail, her attorney said.

Francisca Medina posted $42,000 bond and will appear in state District Judge Brian Rains' court for arraignment on May 20, records indicate.

"She's upset -- the whole family's upset," said John Parras, one of her attorneys. "To a large extent, we believed this was behind us."

I sympathize, but given the bizarre circumstances of this case, I wouldn't have rested easy. I'm still a little surprised that Justice Medina didn't get reindicted this time around.

The Texas Justice Newsladder

With the news of yet another innocent man being released from prison in Dallas, this announcement from John Terzano of The Justice Project is timely.

A large part of our work involves educating citizens and criminal justice stakeholders about the serious problems and common-sense solutions in a way that creates an environment for reform. People need to know that these problems are not rare or isolated incidents. Stories like the one mentioned above are reported every day around the country, but all too often they reach a limited audience or wind up lost in the shuffle of other news coverage.

This is why we have helped launch The Justice NewsLadder, a new web site designed to make staying on top of developments in criminal justice reform easier. The Justice NewsLadder pulls together daily news articles, blog posts, videos and other media so that real-time information is readily accessible with the click of a mouse.

On The Justice NewsLadder, you'll find information about the problems of unreliable witness identification, false confessions, junk forensic science and more. You'll also find stories of people taking on the difficult work of making the system better.

In addition, we are launching a state-specific NewsLadder - the Texas Justice NewsLadder to provide information about Texas, where we are actively engaged in improving the state justice system.

If you have an interest in following criminal justice news stories, this should be a useful resource for you. Check it out.

Medina grand jury reconvenes, indicts wife

This was sudden.

For the second time, a Harris County grand jury indicted the wife of Texas Supreme Court Justice David Medina, alleging she burned down the couple's Spring home and damaged two neighbors' homes in a fire last year.

The indictment, handed up Wednesday, charges Francisca Medina with felony arson for the destruction of her home, felony criminal mischief of more than $200,000 for damage to their neighbor's home and criminal mischief, a state jail felony, for damage done to the house behind the Medinas' home.

Four months ago, a different grand jury indicted Francisca and David Medina, accusing her of having a role in the June 28 fire and him of fabricating evidence, specifically a letter he gave investigators about the incident. The indictments were dismissed the next day.

Prosecutor Vic Wisner said he didn't expect any other indictments in the case, effectively clearing David Medina of any wrongdoing. The prosecutor said he remains open to receiving more information about the fire.

Francisca Medina's attorney called the indictment "ridiculous."

"There's no evidence, there's never going to be any evidence, that Fran Medina burned her own home," said Dick DeGuerin. "It was her dream home."

According to this Texas Lawyer story, the new grand jury just heard evidence today. That's a pretty quick result. It also goes into some more detail about David Medina:

Vic Wisner, an assistant Harris County district attorney, says that in ensuing months, new evidence and witnesses developed in the case that warranted a second grand jury presentation. Wisner presented the case to the grand jury.

"We felt we reached a stage that we had sufficient evidence to go forward," Wisner says.

Wisner says David Medina could be indicted later "if new evidence comes forth. But at this point, we're comfortable with the charging decisions."

"If he has relevant testimony we would call him as a witness at trial," Wisner says. "We've examined the law, and we don't think the marital privilege applies."

As for why the grand jury declined to indict David Medina, Wisner says "I think that will be obvious at trial."

"They examined his conduct and didn't feel it was criminal conduct, or they felt there was criminal conduct but there wasn't probable cause,'' Wisner says, speaking generally about the grand jury decision. "But, I can promise, it will all be covered at trial."

Boy, there's a teaser for you. The report I saw on KHOU said that prosecutors have found away to get around the spousal privilege exception. It didn't go into detail, and it quoted Dick DeGuerin scoffing at the notion, so who knows what they have in mind. I have a feeling this trial, should it get that far, will be covered pretty extensively.

One more thing, from the Chron:

Shortly after [former DA Chuck] Rosenthal moved to dismiss the [January] indictments, two grand jury members publicly denounced Rosenthal's unwillingness to prosecute, a rare move for the group whose actions are typically secret. They alleged that Rosenthal's actions were politically motivated.

The next week, District Judge Jim Wallace, who presided over a hearing to determine whether the two jurors were in contempt for speaking about the grand jury proceeding, criticized the district attorney's office for not supporting the grand jury's decision to indict the Medinas.

Wallace would dismiss the entire grand jury because of a procedural error by the district's attorney's office.

Members of the grand jury subsequently filed a lawsuit against Rosenthal for permission to discuss the evidence they heard while they were empaneled.

Before the indictments were handed up Wednesday, a judge dismissed the lawsuit, apparently coincidentally, said Scott Durfee, general counsel for the Harris County District Attorneys Office.

Jeffrey Dorrell, one of those grand jurors, is quoted in the Texas Lawyer story saying he feels they have been vindicated by this result, and that the second grand jury was not as kind to Mrs. Medina as they were. Some background on that saga can be found here, here, and here.

A cozy little family in juvenile court

This article about how the same attorneys rack up most of the court appointments and accompanying fees for defending indigent clients in juvenile court is fascinating.

Nearly half of all juvenile delinquency appointments have gone to about two dozen of the nearly 165 attorneys vying to represent these young offenders, payment records show. Two attorneys regularly appointed have disciplinary records with the Texas Bar.

Judges say they don't check the disciplinary records of those they appoint and that they rely on the most experienced or available. But many of their top picks also are juggling additional cases in family or criminal courts.

One of the top earners, attorney Oliver Sprott Jr., has done court-appointed work in the adult criminal courts and helped handle a death penalty case while making nearly $200,000 a year in the juvenile courts since 2005, records show. Public defenders working full time on juvenile or child abuse cases in Dallas County earn between $70,000 and $113,000; Travis County pays between $50,000 and $100,000. Sprott declined to comment for this story.

Caseload of 400
Another attorney, Mark Castillo, works as a part-time municipal judge in South Houston while pleading approximately 400 cases involving young offenders each year in Harris County. The National Advisory Commission on Criminal Justice Standards and Goals recommends a juvenile caseload of 200.

Castillo, who works most Thursday afternoons in the South Houston courts and does arraignments there every other afternoon, said he finds time to give juveniles a good defense and thinks public defenders would be even more pressed for time.

"A lot of them are just misdemeanors -- a graffiti case, a marijuana case -- those can be disposed of pretty easily," he said. "You just try to get the best ... you can for them."

All three juvenile court judges have been accused, privately at least, of favoring longtime friends or campaign contributors when appointing lawyers to represent the poor.

But Shelton and Phillips bear the brunt of criticism. Both received more than 90 percent of their campaign contributions from those they appoint; Schneider took in about 74 percent from these lawyers, according to a Chronicle analysis of contributions since 2005.

Mark Sandoval, an attorney appointed almost entirely in Sheltons' court, has also represented Shelton's wife in a lawsuit related to a fatal car crash involving their daughter, who was convicted of intoxicated manslaughter late last year. Sandoval, who did not return calls for comment, continues to get appointments despite being twice suspended between 1997 and 2000 by the State Bar of Texas for professional misconduct.

And two of the courts' top earners, Sprott and Glenn Devlin, who together earned $1 million from taxpayers since 2005, are longtime friends of Phillips and Shelton. Devlin was Phillips' campaign treasurer and former law partner. And each year during baseball season another top earner, attorney Gary Polland, lets Phillips sit in his seats near home plate for a dozen or so games. The judge says he always repays Polland for the cost of the tickets and has taken pains -- including limiting all donations to his campaign to $500 per person -- to erase any appearance of impropriety.

There was a chart in the print edition that showed how much campaign cash these most-frequently-appointed attorneys have given to the judges. The amounts were in the $10K and under range, which frankly strikes me as not terribly impressive. I think the cronyism is more of a concern than the contributions, but no matter how you slice it, the whole thing looks bad and really deserves closer scrutiny. And I'm thinking this just may be a campaign issue for Gary Polland if he does run for the soon-to-be-open SD17 seat.

For his part, Shelton says he gets no joy from his appointment powers and plans to study public defender offices in other cities. All three judges deny any correlation between contributions and appointments.

"I would be happier if there was a public defender system," Shelton said.

Well, yes, that would solve this little dilemma, wouldn't it? Which leads to the curious sidebar story about how "some critics" say a public defender's office would be no better than what we've got now.

[C]ritics of public defender systems call them bureaucratic catastrophes. And though studies have shown public defenders offices can be cheaper than an appointment system, no one has figured out a way to objectively compare the quality of defense, said James Bethke, director of the Texas Task Force on Indigent Defense.

And we have that now, for the current system? At least with a public defenders office, you'd have someone conducting annual performance reviews, which seems to me is better than nothing. This strikes me as a perfect-as-enemy-of-the-good rationale.

Malikah Marrus, a social worker with the Southwest Juvenile Defender Center, believes a new system would help. In her years working in the courts, Marrus said, she has seen an attorney pull a child by the ear and yell at him in court and others ignore the youngsters they are paid to defend.

"Some (attorneys) just don't talk to their clients," she said. "They just don't talk to them. It's like their client doesn't exist."

Other critics contend that the attorneys given the biggest caseloads are so overworked they can't meet with clients.

"From the time of the detention hearing to the first hearing/arraignment in district court, the child generally is sitting in detention with no idea of the charges, (or) many times of their next hearing, and no counsel from an attorney," noted the Juvenile Detention Alternative Initiative in a report to the county last month.

But many working the current system believe a public defender office -- unless adequately funded -- would make matters only worse.

None of these critics are named or quoted, so we have no idea who might think this or why. I must say, I have no idea why this story was run, because I have no idea what it intended to say. I'm perfectly willing to hear criticisms of a public defender's system, especially in the context of how it might compare to the mess we have now, but it would be very helpful if articles that purported to be about such criticism actually contained it. That's not so much to ask, is it?

The state prison guard shortage

Stop me if you've heard this one before.

The Texas prison system is short more than 4,300 guards, with 17 percent of its full-time security positions unfilled. Nearly one in five of the state's 106 prisons operates with fewer than 75 percent of its correctional guards.

Far-flung Fort Stockton, the worst-staffed unit, operates with 59 percent of its correctional officers.

Barfoot's lockup in Amarillo operates with 76 percent of its alloted guard positions.

The prison system has 34 percent fewer guards today than when seven Texas inmates pulled off an escape at the Connally Unit in South Texas in 2000, even though its inmate population has grown 5 percent since then, to 153,000.

Testifying before a legislative hearing last month, Texas Prison Board Chairman Brad Livingston called the guard shortage "critical."

To deal with the shortage, the prison board recently approved a 10 percent emergency raise for new employees, bringing starting salaries to $25,000 a year and $1,500 signing bonuses for those taking jobs at the hardest-to-staff units.

The raises were an attempt to address the fact that Texas guards earned the second-lowest salaries in the nation, according to the American Federation of State, County and Municipal Employees.

The Chron wrote a very similar story almost exactly a year ago. There is, of course, a way to alleviate this problem that won't cost the state any money; indeed, it will save millions of dollars a year. I think we all know what that is, don't we? We just need the Legislature and Governor Perry to take the problem seriously enough to do it. No, I'm not holding my breath in anticipation.

One more thing:

Texas prisons were built in some of the most out-of-the-way areas of the state.

Thirteen of the 15 prisons with the most severe guard shortages are in towns with fewer than 15,000 people.

Nine of those places have lost, not gained, residents since 2000.

Consider the Dalhart Unit, a 1,300-bed facility that operates with 31 percent of its correctional staff positions unfilled and is located in a remote Panhandle town of the same name with 7,000 residents.

Marty Turner, a field representative with the union in the region that includes Dalhart, said the prison is always short-staffed because it has a tiny work force to draw from.

"There's no help," he said. Skyrocketing gas prices have made it difficult to lure people to commute from distant towns, he said.

A shortage of affordable housing keeps them away.

State Sen. John Whitmire, a Houston Democrat who chairs the Senate Committee on Criminal Justice, said he blamed the staffing problems squarely on decisions made during the massive prison building boom of the 1990s to put most of the units in far-flung locations.

"The state built most of its prisons in all the wrong places," he said. "They used prisons for economic development. The rural counties would give you the land and throw in other incentives. It might have looked like a bargain, but we're paying a huge price for it."

Well, given that this has been an utter failure both as a matter of public policy as well as for the stated rationale of economic development, perhaps we ought to consider closing some of these expensive yet wasteful and inefficient prison units. You'd think the self-professed fiscal conservative types would be all over this, but for some reason this issue is never on their radars. Funny how that works, isn't it?

For a public defender's office

Criminal defense attorney Mark Bennett endorses the idea of a public defender's office in Harris County.

Among other things, a public defender's office can maintain standards in the area of investigations. Ad hoc lawyers are at the mercy of the district court judges in getting approval for investigators, including mitigation specialists. A court-appointed mitigation specialist in a non-capital case is, as far as I can tell, unheard-of in Harris County. Harris County judges are, according to defense lawyers with court-appointed practices, stingy with funds for investigators of all sorts. Worse, Harris County judges are known to cut investigators' fees after they have done their work. Try getting a mitigation expert to return to work on a Harris County case after a Harris County judge has slashed her fee. A public defender's office would, like the Harris County District Attorney's Office, have a staff of dedicated investigators to use as needed without seeking the approval of the court. The office would also have a budget that it could use for outside investigators and experts if necessary, without the micromanagement to which court-appointed lawyers can be subjected.

With a couple of assistant public defenders assigned to each court, the DA's office will lose its home-court advantage. This will improve the effectiveness of indigent defense. It will also improve its efficiency, since there are economies of scale and, in Pat McCann's words, "economies of efficiency" in a PD's office that don't exist in an ad hoc system. Lawyers assigned to a court will learn to perform their jobs more efficiently so that they can help more defendants more with less wasted time. In-house investigators will cost the County less money than ad hoc investigators. Instead of paying the lawyers and requiring each to cover her own overhead, a PD's office will consolidate the fixed overhead of the lawyers representing the indigent.

It's good stuff, so check it out.

Interview with Craig Watkins

Radley Balko has a fascinating interview with Dallas County DA Craig Watkins in reason magazine. One point I'd like to highlight:

reason: How should a prosecutor balance his time and resources between prosecuting present-day cases and looking for cases of wrongful conviction?

Watkins: Well, before we got here, there was no one working on innocence cases. So there was no balance, because no one was doing it. We just decided to start a whole new section of the office dedicated solely to innocence. And they're not only looking for bad convictions, they're also looking at what policies and procedures we can put in place to keep them from happening in the future. So we aren't really taking time away from prosecutions. We've just added positions that didn't exist before.

reason: What specific steps did you take after winning office to address this issue?

Watkins: The first thing we did was set up this "Conviction Integrity Unit" in the district attorneys office. We immediately staffed it with two attorneys and two investigators, and told them to look at 400-some-odd cases for which there was DNA available to test. So their responsibility right now is to look through those 400 cases to see if there's reason to suspect a wrongful conviction. If they find cases, we'll then collect the DNA and test it. If it shows the person in prison is innocent, we'll start proceedings for an exoneration.

In addition to that, the unit has the responsibility of training the younger lawyers here in the office on the ethical side of a prosecutor's job--things like the importance of properly dealing with exculpatory evidence. And we intend to have this section here in this office forever. This is not a pilot program. It's something I'd like to see spread across the country--where DAs will actively seek out convictions that were obtained unfairly.

Sound familiar? C.O. Bradford, the Democratic candidate for DA here in Harris County, has proposed the same thing. And I think it's as needed here - and most other places as well - as it is in Dallas. The issues in Harris are perhaps a bit different - where Dallas' problems mostly stem from Henry Wade's convictions-uber-alles mentality, the signature item here has been the spectacular incompetence of various court-appointed defense attorneys. That's something that will be mitigated going forward if the proposed and under study public defender's office takes flight, but in the end, the different problems lead to the same result of people being wrongly convicted. It's the DA's job not to just avoid these problems as best they can, but also to work to correct them when they become known. I hope we follow Craig Watkins' lead in this regard.

Anyway, there's a lot more good stuff there, so check it out. Thanks to Grits for the link.

Public defender's office gets OK to be studied

It's a step in the right direction.

Commissioners Court agreed Tuesday to study whether Harris County should create a public defenders office and what kind of program might work.

The court voted 4-0 to instruct Budget Officer Dick Raycraft to conduct the study and report his findings by late September. Commissioner Steve Radack missed most of the meeting, but said he supported studying the issue.

[...]

Court members held off on discussing the merits of a public defenders office, saying they wanted to see the results of the study first.

County Judge Ed Emmett said he would support creating the office if it would level the playing field for poor defendants, even if it costs more.

"This is about more than money," Emmett said. "At the end of the day we have to have the fairest system possible."

Radack said earlier this week that he would not support the creation of a public defenders office unless it saved the county money.

The county spent about $22 million on court-appointed defense attorneys last year to handle about 52,000 cases in county and district courts, Raycraft said.

We saw Radack's skepticism last time. I note as well that he didn't say he'd support it if it saved the county money, just that he wouldn't unless it did. That may be reading too much into what he said, but I haven't seen a pledge from Radack to go along if the study is favorable, and I'm not going to put words in his mouth. Far as I'm concerned, he's still got room to weasel out if he wants to. Which would be low of him, but not a flipflop.

Raycraft said he plans to set up a panel that would include representatives from the courts, community groups and the county to help with the study and hammer out some recommendations for the court.

"We're going to make sure there's public input, there's no question about that," he said.

I hope this includes public hearings as well. The more open discussion there is about this, the better.

The high cost of getting tuff on crime

Great article in the Chron about the decline of personal recognizance bonds in Harris County and the effect it has on the local jail population. You need to read the whole thing, as it really adds a lot to the discussion of why our jail system is so screwed up, but I want to focus on two aspects of the story.

Over the past 15 years, the use of personal bonds has all but disappeared in low-grade felony cases. Most Harris County district court judges say they would consider them for the right defendant, but the numbers suggest the "right" defendant rarely appears.

It has not always been this way. In 1994, personal bonds accounted for the release of almost 9,000 people from the Harris County Jail, including more than 1,800 facing low-grade felony charges, frequently drug possession.

A decade later, only 109 felony defendants were let out of jail without posting a cash bond. By 2007 that number was up slightly -- to 153 -- which translates into less than one half of one percent of the 36,176 people in jail interviewed by pretrial services officers.

Fewer personal bonds may be good for the bonding companies, as some people who once got them might be able to pay to get out of jail, especially if charged with a misdemeanor. But defense lawyers complain it is neither smart nor fair.

"What this means is that if you are really poor, you have zero chance of getting out of jail before your trial," said Pat McCann, president of the Harris Country Criminal Lawyers Association. "If you're a poor person in jail, you're screwed."

The basic purpose of a bond is to make sure a person charged with a crime shows up in court. Public safety is also a consideration.

The consequences are two-fold. Fewer personal bonds contributes to the Harris County Jail being filled beyond capacity, requiring local taxpayers to spend $9 million a year to house approximately 600 prisoners in a private Louisiana jail. And people who cannot post a bond are far more likely to plead guilty in order to get out of jail.

"It's just plain nuts," said state Sen. John Whitmire, D-Houston, who chairs the Senate's criminal justice committee and has talked with local judges and jail officials about the issue. "You've got to be smart as well as tough. If we better managed our current resources and only locked up those who posed a public safety risk, we would save millions of dollars."

So that's nine million dollars to ship inmates to Louisiana, plus however many millions hiring more guards and paying overtime, plus a failed proposition last year to spend $195 million on more jail space. All because judges - Republican judges, which is all we've had since 1996 - have decided that no-cash bonds are a no-no. For all the bitching and moaning that some local activists do about property taxes and spending on other programs, they're awfully quiet about the vast resources we pour into keeping mostly non-violent and non-felony offenders, many of whom are awaiting trial, in jail. Apparently, it's okay to spend tax dollars lavishly on some things, just not on things they don't like.

And I want to emphasize again, what we're doing here we're doing by choice. We don't have to do it this way. There's a huge opportunity to be more efficient, save money, and better serve the interests of justice, if only the people who get to make these choices wouldn't be so dogmatic about it. The remedy for that, since it's clear that what we're getting is what we'll continue to get as long as the same cast is in charge, is at the ballot box in November.

The interests of justice is the other item to discuss:

Almost half of the felony cases filed in Harris County in 2006 were resolved within 60 days, many of those at the first trial setting. No other urban county in Texas disposes of such a high proportion of its cases so quickly.

Whether that equates to justice is a different matter. Often the lawyers appointed to represent indigent clients end up recommending pleas for people they just met and whose cases they have not investigated.

"It's just insidious," said defense attorney David Jones. "Isn't the system supposed to be an adversarial system? What's guiding it now are the values of a bureaucrat. It has become a matter of processing."

So how many innocent people, rather than sit for months in jail because they can't afford a cash bond, plead guilty to something so they can get on with their lives? We've discussed this before, and it's a bit sobering to consider. What would you do if you were in that situation? It's a pretty nasty choice, isn't it?

The bottom line is that it doesn't have to be this way. We can choose to do things differently. And we will have the chance to make that choice soon.

UPDATE: Grits has more.

Commissioners Court to study public defenders office

This is encouraging.

Commissioners Court is expected Tuesday to approve a study of whether Harris County should create a public defenders office.

Commissioner Sylvia Garcia said that after the study is completed, she likely will press colleagues to create the office, an option the court has rejected for more than two decades.

"I am predisposed to support creating a public defender system," Garcia said. "It's long overdue in Harris County."

But Commissioner Steve Radack said, "They can study it, but unless it saves taxpayers' money, then I'm not for it."

Way to keep an open mind there, Steve. With an attitude like that, I suspect you'll find a way to question any report that shows a PDs office would in fact save money. But as Commissioner Garcia correctly notes, it's not just about strict accounting:

Garcia said she likely would push for a hybrid system in which some defendants would be represented by public defenders, some by court-appointed lawyers.

Dallas County has a hybrid system.

According to the Texas Task Force on Indigent Defense, the county's public defenders office was assigned 41,000 cases last year and handled them at a cost of $214 per case.

The 25,000 cases assigned counsel in Dallas last year cost $493 per case.

Radack said he is convinced that defendants in Harris County receive fair representation from court-appointed lawyers and will look at only whether a public defender system would save money.

But Garcia said the county should study the county's entire criminal justice system and look for ways to thin out adult jails while maintaining public safety.

The county, she said, may find that a public defenders office could cost more than a system that solely relies on court-appointed lawyers.

But a good public defender system may have unexpected cost benefits -- perhaps its lawyers would help more defendants post bail, relieving the county of jail costs, she said.

Garcia said she may be willing to spend additional money to create a good public defenders office if it would help prevent innocent defendants from being convicted.

"It might be part of what the Pledge of Allegiance says: It's justice for all," she said. "A good public defenders system can provide just that: justice for all."

I can't put it any better than that. And let's face it, not convicting innocent defendants isn't just a key part of what justice is about, it's also good economics, given how expensive it is to incarcerate inmates these days. Whatever penurious amount we're spending on the current system of court-appointed attorneys these days, I don't see how it can offset the cost of locking up someone for 20 years for a crime he didn't commit.

And in a related story, some good news for the county.

State inspectors found no violations during their weeklong inspection of the Harris County Jail system, officials said Friday.

"The facility, the entire complex, was found in compliance," said Adan Munoz, executive director of the Texas Commission on Jail Standards.

The complete report should be ready next week. Inspectors check all aspects of prisoner care and guard training, as well as cleanliness, fire safety and other building standards. The county was given 10 days notice prior to the inspection.

Previous inspections from 2004 to 2006 found that the county was out of compliance because of crowding and understaffing. The county hired more guards, expanded overtime and sent 600 inmates to a Louisiana prison last year to get back into compliance last May.

Well, that's something. At a substantial cost, I'm sure, but at least we're not breaking the law any more.

Whitmire: Abolish the TYC

I think there's a lot of merit to this.

The Texas Senate's leader on prison policy has a novel idea for the state's $235-million-a year system of juvenile corrections: Abolish it.

John Whitmire, a Democrat from Houston who chairs the Senate Committee on Criminal Justice, said no amount of reforms at the Texas Youth Commission will correct what he sees as an expensive, poorly conceived, top-heavy, ineffective bureaucratic operation that's better known for its sex abuse scandals than its graduation rates.

"We're spending ($235) million a year and we've got these broken-down, unsafe facilities in all the wrong places," Whitmire said this week, adding that he would replace the state system with smaller lockups closer to where most offenders live.

In making the case for dissolving the 59-year-old agency, Whitmire noted these facts: The agency has more employees (4,100) than incarcerated youth (2,800), yet still, because of a complex set of factors, including the difficulty of recruiting staff in remote places, is short 440 guards. Its offender population is smaller than some high schools, but in part to support a huge bureaucracy, the state spends a large amount each year to provide for their care. It scatters troubled offenders in units located in largely rural areas around the state, even though most come from urban areas far away, he said.

"You can't take a kid from Houston and send him to the Oklahoma border where he never sees his parents and expect to reform him," Whitmire said. "Let's keep the kids in county-run urban settings and let the (state) money go with them and you cut out all the top and middle bureaucracy. We're wasting millions of dollars and not getting very much in return."

I think there's a lot of merit to this idea. One of the things we learned from the problems at the Pyote facility is that it's difficult to find and retain qualified staff at these remote locations. Not too many people would choose to live out in the middle of nowhere like that, especially at the prevailing wages. At least under this plan, you'd be able to draw from some larger labor pools, and yes, I think keeping the kids in familiar surroundings will help them rehabilitate. That is the point - rehabilitation - right?

District Judge Mike Schneider, one of [District Judge Pat] Shelton's fellow juvenile court jurists in Harris County, said he hopes that the state studies Whitmire's proposal.

He said he has felt frustrated because in the past TYC didn't provide youths with services ordered by Harris County judges. Before the TYC scandal, sex offenders sentenced in county courts to TYC often did not undergo counseling ordered by judges, he said.

If the county probation department ran lockups for such offenders, judges could check to see if the services were provided and hold the department accountable, Schneider said.

"I have no problem getting rid of TYC as long as we have the option of dealing with kids locally and that it's not an unfunded mandate," he said.

Harris County Judge Ed Emmett, chair of the county juvenile probation board, said he will wait and see whether state lawmakers seriously consider Whitmire's proposal.

Brazoria County Court-at-law judge James Blackstock, who is chairman of that county's juvenile board, said the issue will come down to money.

"If the state orders that and funds it sufficiently, then I'm all for it," he said. "If it's an unfunded mandate, then I'm against it."

That's a perfectly reasonable position to take. Sadly, with the Lege, it's not something you can assume. Let's get the discussion going on this, and see where it takes us.

The jail chronicles

This is fitting, isn't it?

The Harris County Jail held about 10,400 inmates -- 1,000 beyond its capacity -- Tuesday, the same day the Texas Commission on Jail Standards carried out its annual inspection of the lockup.

The figures appear in line with the conclusions of a national advocacy group that issued a report Tuesday decrying the growing number of inmates in U.S. jails and the effect it has on communities.

According to a Justice Policy Institute study, the number of people in American jails nearly has doubled since 1990 as the facilities detain more drug offenders, mentally ill and criminals sentenced to prisons.

The same trends have contributed to crowding in the Harris County Jail, leading it to be cited several times by the Texas Commission on Jail Standards.

The Justice Policy Institute report focused on the nation's most populous counties and covered the decade from 1996 to 2006. According to the report, Harris County, the third-largest, incarcerated the fourth-highest number of inmates, 9,400, in 2006. That represented a 23 percent increase over 1996, when the county jail population was more than 7,700. That increase was the 12th biggest among the nation's most populous counties, the report said.

The report is here (PDF). Thanks to Grits for the link.

Voters in the county last year defeated a bond that would have paid to build a $245 million, 2,500-bed jail in the downtown jail complex.

It would have included a vast area for health care and mental health care, officials said. It also would have included a larger, improved intake center where incoming detainees would be evaluated and placed in appropriate settings if they were found to be mentally ill.

In June, the Commissioners Court will consider whether to ask voters to approve a bond for a smaller jail than the one rejected last November, [Dick Raycraft, county budget and management services director] said.

Detention costs in the county continue to rise. Two years ago, the county spent $154 million on detention, Raycraft said.

This year, it will spend $192 million, a 24 percent increase. The costs will continue to rise if the county builds more jails and hires the guards needed to operate them.

And I will continue to advocate a vote against these new-jail-construction bonds until the county demonstrates that it can get a handle on those rising costs. That means coming up with a plan to jail fewer people - and remember, we're often talking about low-level drug offenders, people who can't make bail, and people who have chosen jail time over probation because probation is so onerous. Which in turn may obviate the need for more jail space, though perhaps some of the other features, such as more resources for mentally ill inmates, would still be appropriate and needed. But without that, I say No.

UPDATE: More from Grits.

Rusty Yates has a new son

Noted for the record.

Rusty Yates, the father of five slain children, has a son with his new wife.

Yates on Sunday told KHOU television in Houston that his wife, Laura, recently gave birth to a "healthy boy." Further details were not immediately available.

The couple wed in March 2006.

Rusty Yates divorced Andrea Yates in March 2005.

[...]

Defense attorney George Parnham told KTRK-TV that Andrea Yates is aware of her ex-husband's new child, "is at peace with the issue" and her position is that life goes on.

According to a story from March 2006, Laura Yates had two children previously. My feelings about Rusty Yates can be summed up as "complicated", but I offer my congratulations to him and his family, and wish them all well with their new baby.

The new DA's new direction?

This article is about a guilty plea being entered by two of the four former staffers of the Mayor Pro Tem's office who were arrested for improperly giving themselves bonuses, but the most interesting bit in the story to me is this:

The news comes on the heels of Harris County prosecutors' decision to plea out two high-profile cases Wednesday, signifying what some believe is a change of philosophy under newly appointed District Attorney Ken Magidson.

Under former District Attorney Chuck Rosenthal, defense lawyers say, it's doubtful that former Texas Southern University President Priscilla Slade and a man who faced the death penalty for gunning down a volunteer firefighter, could have avoided jury trials.

Lewis said he is "striking while the iron is hot." He said antiquated and unreasonable policies Rosenthal put in place hamstrung his prosecutors from making good decisions.

"He had a draconian policy that he had to set the offer, not the prosecutors who handle the case, which I think is idiotic," Lewis said. "Now the powers that be, now that he's not there mucking it up, have started to get on a more reasonable track. It's evidenced by Slade."

Calls to Rosenthal were not returned about the two cases: Slade, who got 10 years probation and restitution to the university of more than $127,000, and Keith Hines, who faced the death penalty for gunning down a volunteer firefighter.

Vivian King, a defense attorney who assisted in the Hines case, agreed with Lewis' strategy to try to get a more lenient deal.

She said she doubts prosecutors under Rosenthal would have allowed Hines to save his life by accepting life in prison without parole.

"I attribute it to the new DA," King said. "I may be wrong, but that's what I attribute it to."

She said she also has the impression that Rosenthal didn't reel in underlings who sought the harshest punishments.

Several assistant district attorneys, including Smyth, disagreed with the analysis of Lewis and King.

Magidson released a statement that said he does not believe anyone should draw any conclusions about him or the office's philosophy on the basis of the plea agreements.

"Those plea agreements were case-specific, reached after careful consideration of the facts and circumstances presented by each matter. Future cases with similar charges may result in completely different outcomes depending on the facts and circumstances."

Well, one could argue that this kind of careful, case-specific consideration is in itself evidence of a change of direction from the Rosenthal days. If the people who deal with the DA's office think things are different now, they're going to act as though it's true. All I know is that whether these are isolated cases or part of an emerging pattern, it's all good to me.

More on a public defender's office for Harris County

Lisa Falkenberg keeps the ball rolling on the public defender's office for Harris County idea by asking a few candidates for countywide office where they stand on it.

The Democrats seemed uncharacteristically united and on message.

"It promotes fairness and justice, period," said former Houston Police Chief C.O. Bradford, Democrat for district attorney.

"I would make it a top priority of mine," said businessman David Mincberg, Democrat for county judge.

Republicans, meanwhile, were stammering, indecisive, claiming ignorance or ordering up a task force or some other form of further study.

"It's not something I have thought about," said County Judge Ed Emmett, who faces Mincberg in a race to keep his job. "It's on my plate for reading material."

"It's not really our decision," said chief prosecutor Kelly Siegler, who faces former felony court judge Pat Lykos in the April 8 Republican primary runoff for district attorney.

"It's going to take some considerable thought," said Lykos. "We certainly can't go on the way we are. And I certainly don't have a visceral rejection of it by any stretch."

She paused.

"That doesn't make sense, what I just said, does it?"

It is a tougher question for Republicans, who are wary of any issue that might make them appear soft on crime.

And they acknowledged at some level the merits of proponents' arguments, namely that the current system, in which lawyers are appointed by judges, doesn't always provide indigent defendants a fair shot at justice, either in terms of resources or quality of counsel.

Lykos, the former judge, agreed that "there has to be more resources for indigent defense," and allowed that a public defender office is "worth studying," but she cautioned about some of the pitfalls, as relayed to her by judges in other parts of the country.

"If it's not well-run, then you have the problem of them and the prosecutors kind of getting cozy with one another, if you will, and trading out and not vigorously representing their clients," Lykos said.

Siegler, though she fairly argued that the issue wasn't within the jurisdiction of the DA's office, also said, "You know, if that ultimately turns out to be the way the people in charge decide to go, that's fine with me.

" ... I would say, from the last three months, with all the things that I learned about our system, about our office, about the appointment of defense lawyers, that there are changes that need to be made in all aspects," Siegler said. "And I'll tell you, a year ago, I didn't know all that."

Reading Siegler's response raised a question for me: How would a public defender's office get created in Harris County? Is this something the Lege would have to authorize and/or fund (which was my initial impression), or is it something the Commissioners Court can do? Judge Emmett's comment at the end of the story that no one on the Court has mentioned this and that he himself has no intention of bringing it up makes me think it's the latter, but I'm not sure.

Regardless, wherever the power to create this office rests, it's certainly the case that the opinion of the District Attorney will be taken into account when and if the matter comes to the fore. A DA who strongly opposes a public defender could very well derail it, whereas one who loudly advocates for it can help make it happen. And of course, if this is within the purview of the Commissioners Court, then it seems pretty clear that David Mincberg would pursue this path, while Ed Emmett will not; at least, he won't be an advocate, though he might go along if the other Commissioners say they want it. I don't know how many votes might change based on a candidate's position on this issue, but the distinction is there if it matters to you. I certainly think this is a good idea, and I hope there will continue to be a focus on it. Houtopia has more.

Harris County juvenile facilities criticized

Given the state of the jails, this should not come as a surprise.

Local judges, probation employees and others are operating under a patchwork of sometimes quirky standards for deciding which youths get sent to Harris County's crowded juvenile detention facilities, according to a new study.

One juvenile court judge, for example, orders youths with cases in his court into a detention facility if they miss school seven days, a report by the Annie E. Casey Foundation found. Other youths who possibly should be detained before trial are released because there is no space to hold them.

"The development of a uniform, objective approach to detention decision-making should be a high priority," the report says.

A committee that will be chaired by County Judge Ed Emmett and include Houston Police Chief Harold Hurtt, Commissioner Sylvia Garcia and juvenile court Judge Mike Schneider will hold its initial meeting Wednesday to discuss ways of implementing the report's recommendations.

I've searched around but can't find a copy of the report online. Anyone out there know where it is?

The report said the district attorney's office clogs up the juvenile justice system and takes time away from serious cases by filing charges against all youths accused of Class A and B misdemeanors.

Class B misdemeanors include shoplifting, possession of less than two ounces of marijuana and evading arrest. Class A misdemeanors include assaults related to fighting and thefts.

Harvey Hetzel, director of the county Juvenile Probation Department, said the system would be less burdened if the district attorney's office deferred prosecution in some of these cases.

But Bill Hawkins, chief of the District Attorney's juvenile division, said juvenile crime would rise if prosecutors didn't hold youths accountable and bring them to court. In Harris County, too many juvenile cases went the deferred prosecution route until the mid-1990s, and juvenile crime increased, he said.

"We'd be turning back the clock to something that was a disaster before," Hawkins said. "It's important that kids come to court and see some formal level of accountability in court."

Okay, but have we learned anything from that earlier experience that may help us to better decide which cases need full prosecution and which ones can be handled with a lighter touch? Saying "we tried that before and it didn't work" isn't really constructive here, because the opposite approach isn't working, either. If "too many cases" went to deferred prosecution in the 1990s, then maybe there's some number between what we did then and what we're doing now that would represent an improvement. Let's keep an open mind here.

As with related issues like the state of the jails and the public defender's office proposal, this is both about better justice and better management of scarce resources. If you're not looking for ways to improve, you're not being fiscally responsible. Take the report as a starting point and see what can and should be done. This should not be controversial. Grits has more.

Magidson makes his mark

Our new DA is settling into the job.

Comparing the Harris County District Attorney's office to a ship at sea in need of a course correction, the newly sworn in DA said he will make small changes during his expected 9-month tenure.

"The changes I make today can have long term effects years from now," Ken Magidson said today. Magidson was sworn in Wednesday to replace Chuck Rosenthal, who resigned last month.

Magidson said the changes he expects to make may not immediately be obvious. But, like the task forces he headed as an assistant U.S. attorney, the small changes can pull an organization together for the long run.

"I created a system, a culture of understanding what the purpose of the mission was, of what we're trying to accomplish," Magidson said.

[...]

Of the two changes made on the second day, Magidson promoted Charlene Mrazek to his executive secretary and said Rosenthal's executive secretary, Kerry Stevens, took a job in the grand jury division of the district attorney's office.

I figure as long as everyone keeps their hands and their right ears to themselves, we're off to a good start.

Magidson also changed the policy for telephone conversations and computer use from a stated prohibition to allow employees incidental use.

"This is consistent with most governmental entities and the corporate world and the county policy," Magidson said. He said additional language in the new rules state that offensive or inappropriate use of computers should be reported to supervisors.

Magidson said he plans to look at other issues in the office as they crop up.

Seems reasonable. It's not realistic in a modern office to forbid the use of equipment like the phone and the computer for any personal use. It's also pretty apparent that this policy was completely ignored by Chuck Rosenthal, so why not get more in line with reality? So far so good for our interim DA.

You have the right to an attorney, just not right now

Grits reminds me about this wire story from a couple of days ago regarding a case now before the Supreme Court about when the right to an attorney first applies.

Three weeks after Walter Rothgery arrived from Arizona to manage an RV park in the Texas Hill Country, the work offer evaporated. He lost not only his job but the place at the park where he and his wife were to live.

Then things got ugly.

The next day, Rothgery was arrested for carrying a gun as a convicted felon, based on a background check that erroneously showed a felony drug conviction in California. His wife used their last $500 to post bail. No lawyer was provided at his initial hearing.

"I grew up kind of being an idealist American" said Rothgery, 57, and a former West Point cadet. "I never thought something like this could happen to me."

Now he will argue before the Supreme Court on Monday that Texas should provide a defense lawyer for indigent clients once they've made a first appearance before a magistrate. Had Rothgery had one, the erroneous report of a previous conviction would have been disproven, eliminating the reason he was arrested in the first place.

Rothgery waived his right to have a lawyer at that first jailhouse court appearance, but said he did only for that appearance so bond could be set and he could be released.

Rothgery spent the next six months in legal limbo: unable to get a full-time job because of the report of a conviction hanging over him and unable to afford a lawyer. He was indicted, re-arrested, had his bail tripled and moved to a county jail more than 100 miles from his home.

A sympathetic warden there helped him find a lawyer, who obtained documentation proving he had no felony record.

Three weeks later, Rothgery was released again on bail, and Gillespie County prosecutors ultimately dropped the charge. He was a free man.

"I guess everybody who gets arrested says they're innocent," Rothgery said. "Sometimes they are."

Rothgery's case caught the attention of Andrea Marsh, a rookie civil liberties lawyer who filed the first lawsuit of her career on his behalf against the county in 2004 alleging his Sixth Amendment right to an attorney was violated.

If a lawyer had been appointed, the mistake underlying his arrest would have been discovered and he wouldn't have been subjected to bond for a lengthy period and wrongfully jailed, she argued.

"I always thought once you ask for a lawyer you get a lawyer," Rothgery said.

Not necessarily so, according to Texas legal procedures upheld by a federal judge who summarily dismissed Rothgery's case. The 5th U.S. Circuit Court of Appeals upheld that decision.

The Supreme Court was to hear arguments Monday in Rothgery's suit, with his attorneys insisting the procedure followed by Gillespie County allows defendants to be jailed for long periods without any access to counsel, a situation inconsistent with Sixth Amendment protections.

Can you imagine sitting in jail for three weeks because you didn't have a lawyer who could point out the simple fact that you shouldn't have been arrested in the first place? It's appalling. If nothing else, remember William Rothgery's name the next time you hear someone say we need more jail space in Harris County to hold all those people who can't make bail while they're waiting for their trials. How many tax dollars were spent to keep this poor guy behind bars?

Grits discusses the prosecutors' reactions to this lawsuit:

On the prosecutors' association user forum in December, one of their lobbyists, Shannon Edmonds, lamented that if SCOTUS restricts the ability to hold defendants in jail without appointing a lawyer, it may result in "fewer valid confessions." Moreover, he said, if SCOTUS requires appointment of counsel earlier in the process, "counties will squeal about the costs, leading to a statewide push for the creation of more local public defender offices."

More public defender offices, if you ask me, would be a good outcome from this case, if Edmonds' prediction holds true. If Rothgery wins, depending on the contents of the opinion, counties can "squeal" all they want but they still have to pay.

As for fewer confessions, though, let's interrogate this assertion for a second. Why would more people confess under the current system? Because they don't have a lawyer's advice! That certainly won't be an argument SCOTUS accepts (I would hope) for delaying appointment of an attorney. The other reason failing to appoint a lawyer would boost confessions is when the defendant sitting in jail and that's the quickest option to get out - particularly on lower level charges where probation or a short jail sentence is the most likely outcome. But "lock 'em up without a lawyer till they confess" isn't what the American justice system should be about, is it?

I love that they claim to be concerned about costs here. Which do you think would have been cheaper: Paying an attorney to get the charges against William Rothgery dropped immediately, or paying to house and feed him for three weeks? Seems like a no-brainer to me.

Grits also has a summary of the oral arguments, which thankfully make it look like Rothgery will prevail. I've seen some pretty weak defenses before, but Gillespie County looks especially pathetic here. Check it out, and check out some of the related commentary links he found; these two from Orin Kerr are particularly interesting.

Sen. Ellis calls for a public defender's office

State Sen. Rodney Ellis makes the case for creating a public defender's office in Harris County.

In Harper Lee's classic novel, To Kill a Mockingbird, the protagonist Atticus Finch embodies what we hope attorneys, our gatekeepers to justice, to be -- a stoic figure of immeasurable fairness and integrity who protects the rights of the innocent. Finch summarizes the American ideal of justice this way, ''The one place a man ought to get a square deal is the courtroom."

The promise of adequate representation -- the promise that our rights as persons are protected and that everyone accused of a crime, rich or poor, stands equal before the law -- is at the root of American democratic ideals of liberty and justice.

Our founding fathers secured that promise in the Sixth Amendment of the Constitution, and the U.S. Supreme Court, most notably in Gideon v. Wainwright, has consistently affirmed and expanded that promise as essential to ensuring fairness in our justice system.

Unfortunately, as we approach the 45th anniversary of Gideon, any claim to fulfilling that promise in Harris County is as fictitious as Harper Lee's novel. Too many impoverished citizens are processed through our courts with an incompetent or inexperienced lawyer, no lawyer at all or a lawyer who does not have the time, resources or inclination to provide effective representation.

Lisa Falkenberg wrote about this on Wednesday, so it looks like Ellis is putting on a full-court press for this idea. It's definitely worthwhile, and I hope it gets taken up by the Lege next year. There's plenty of good reasons for this, but I'll focus on the one that ought to have the broadest appeal:

Not only will a public defender office improve the quality of legal representation, it also will save money by pooling resources and reducing duplication of services.

That's what happened in Dallas County. According to the Texas Task Force on Indigent Defense (TFID), Dallas County's split public defender/assigned counsel system shows substantial savings when cases are handled by the public defender office. The 25,000 cases assigned counsel in Dallas last year cost $493 per case. The 41,000 cases assigned to the Dallas County public defender office cost only $214.66 per case.

Other Texas counties that have moved forward with public defender offices have reported satisfaction with the services and cost reduction. Travis, Bexar, El Paso, Colorado, Webb, Wichita, Hidalgo, Cameron and Willacy counties, among others, have established public defender offices. Lubbock is starting an office for capital cases that will cover an 85-county area. Each of these counties is making sure defendants who cannot afford attorneys are able to get quality representation, and they're saving money in the process.

So if you don't care about such fuzzy-headed concepts as justice and equality, maybe you'll like the idea of saving a few bucks. Hey, whatever works.

More jail deaths

More news on the federal investigation into the state of Harris County's jails.

Three Harris County Jail inmates died in the first 12 days of this year, and what happened to them is likely a part of a federal investigation announced last week.

Last year, 16 prisoners died in the care of the downtown Houston jail, compared with 21 in 2006. During the first two weeks of this year, one woman and two men died in the county's custody, according to records provided Monday by the Harris County Sheriff's Office. A sheriff's spokesman said the list was the most recent information available.

The Justice Department's civil rights division opened the investigation to determine whether the constitutional rights of Harris County detainees have been violated. Federal authorities will focus on the jail's efforts to protect inmates from harm as well as the facility's living conditions and health care.

Failures in all three areas were causes of death for inmates at the Dallas County Jail, an investigation opened by justice officials in November 2005 concluded.

[...]

According to court records, inmate deaths were the primary focus of the Dallas investigation. The government's report about Dallas jail conditions cited 13 areas of inadequate medical care. Investigators were concerned about the jail's slow determination of deadly medical conditions and failure to manage the medical needs of inmates with chronic conditions that could kill them.

Federal authorities will send a team of experts to inspect the Harris County Jail, and more than one visit is likely.

For the Dallas investigation, consultants in the fields of medical care, mental health care, safety and sanitation made two visits in 2006. One lasted five days; the other was four days. The team collected policies, procedures and incident reports from local officials as well as the grievances and health records of inmates. Four months later, Dallas officials reported how they were addressing the "deficient conditions" cited by the consultants.

I fully expect they'll find things that need fixing. It's hard to imagine that so many inmate deaths could be occurring under proper conditions. It's just a question of how difficult - and expensive - it will be to fix the things they point out, and whether any obvious fall guys will be identified. I look forward to seeing the reports.

Feds investigating Harris County jails

This ought to be interesting.

Long criticized for its conditions and treatment of inmates, the Harris County Jail is under investigation by the Department of Justice civil rights division.

In a letter sent to Harris County Judge Ed Emmett on Friday, the department said the probe would determine whether the jail is operating under unlawful conditions.

Though a spokeswoman at Justice declined to say why the federal authorities are investigating, the jail has been criticized for overcrowding, poor ventilation and sanitation, as well as questionable access to medical treatment and prescription drugs.

Last year, the Chronicle reported that more than 100 inmates died in the jail between January 2001 and December 2006. There were 11 deaths in the first three months of last year, compared with 22 in all of 2006.

The county reduced overcrowding last year by sending inmates to a private Louisiana jail.

If the Justice investigation finds violations, federal officials will suggest ways to improve jail conditions. If those recommendations are not met, federal law allows the attorney general to sue the county.

Friday's letter, written by an acting assistant attorney general, also said the investigation will end if authorities conclude there are no "systemic violations of constitutional or other federal rights."

Here's the letter they sent. As you can see, it says they have "not reached any conclusions", and it sounds more cordial than threatening. I feel confident they'll find problems, it's just a matter of whether or not they're serious, and easily fixable.

The issue of overcrowding in our jails is an old familiar one, so I'll save a little time and refer you to Grits from today and from 2005 for the background. There are two important things to remember here. One is that the jails doesn't have to be overcrowded. Different policies for things like bail and probation revocation could make a huge difference, and save a bunch of money, without adding any substantial risk to public safety. And two:

Last November, Dallas County's sheriff struck a deal that set new policies in those areas.

Like Harris County, that jail mostly housed pretrial inmates who had not been convicted of crimes.

That means that a nontrivial number of people who are subjected to this are people who aren't actually criminals. Some of these folks will come out with the same clean record they had going in. Many will come out with at most a misdemeanor plea. How many of them really need to be locked up? It's our choice.

Who should investigate Chuck?

Rick Casey adds a small piece to the puzzle of where the investigation into possible wrongdoings by now-former DA Chuck Rosenthal stands.

Republican candidates to replace Rosenthal have called for a special prosecutor to investigate whether he illegally used his official computer for re-election campaign purposes.

And Wednesday Eric Nichols, deputy attorney general for criminal justice, sent a letter to Acting District Attorney Bert Graham offering "our office's assistance with any further potential action involving Charles A. Rosenthal, Jr."

Graham said Thursday he has not yet made a decision, but possibilities include asking the attorney general's office to pursue the matter, asking a district judge to appoint an independent prosecutor, or leaving the matter to the next district attorney.

Let me just say that options 1 and 2 are vastly preferable to 3. Whoever the next DA is, Republican or Democrat, he or she should not have to undertake the task of investigating his or her immediate predecessor. Given how political Rosenthal was in deciding when to pursue an investigation or not, this particular case needs to be as far removed from politics as possible. Let someone with no connection to Harris County or interest in its power structure handle this. This should be a no-brainer.

Defense attorneys want new DA named

Excuse me, Governor Perry? When are we going to get a new DA?

Patrick McCann, president of the Harris County Criminal Lawyers Association, said that one interpretation of state law suggests a district attorney's office without an elected head is tantamount to a court without a judge.

Perry spokesman Alicia Castle dismissed McCann's theory, saying that the Texas government code stipulates that, in such cases, authority for the department is handed to the first assistant.

Castle said no timetable has been established for naming Rosenthal's successor.

Yeah, well, as with special elections, the Governor interprets these laws as he sees fit. If you're the least bit surprised by this, you haven't been paying attention.

This, however, is a surprise:

In his letter to Perry, U.S. Attorney Don DeGabrielle, Judge Olen Underwood of the Second Judicial District of Texas and other officials, McCann also called for state and federal investigations into possible wrongdoings by Rosenthal while in office.

The Texas Attorney General's Office probe of Rosenthal ended with his Friday resignation.

Rosenthal learned Thursday that the office planned to file a lawsuit this week to remove him from office, Jerry Strickland, a spokesman for the Attorney Generals Office said.

Strickland disagreed with Rosenthal's attorney's claim that a deal had been struck to end the investigation if Rosenthal resigned.

Deputy Attorney General Eric Nichols has offered his office's assistance to local prosecutors in any further potential action against Rosenthal.

That a deal was in place was the clear implication attorney Woods gave. I was disappointed to hear that such a deal might mean there would be no conclusion to that investigation, if only for the learning we could take from it. As such, I'm pleased to hear that it's still ongoing. If Chuck Rosenthal broke the law, his resignation shouldn't be enough to get him off the hook for it. It's what he'd say if he were the one doing the investigating. Let's follow through on this and see where it takes us.

Support resolutions to reform youth and adult corrections

Grits has a great idea.

With so many folks attending their precinct conventions for the first time, I decided to craft two criminal justice related resolutions for readers to propose when they go, and we're going to run a little mini-campaign here on Grits to see in how many different places around the state we can get them passed.

These resolutions serve two purposes: 1) if they pass, they formally request action by legislators and county officials from the party that can assist in persuading politicians on issues, and 2) the process educates party members about criminal justice problems and solutions and expands the base of support for these ideas among politically active people. Basically, you get a lot of public education bang for the buck by directly educating influential people and opinion leaders, particularly in a year when so many more folks will be attending.

[...]

My purpose here is two-fold: To support solutions-oriented criminal justice positions among Texas pols in both parties (who are used to hearing mostly politicized, "tuff on crime" rhetoric), and to test the possibilities and limits of blog-generated grass roots activism, including several specific free or low-cost tools. So we'll be following the process closely on Grits to report what works and what doesn't.

The resolutions, both of which I strongly support, are as follows:

Resolution on Prison and Jail Overcrowding

Resolution Supporting Reforms at TYC

They are entirely suitable for either party, and will hopefully help to drive some better legislation in 2009. If you want to participate, please visit the Grits link and start with this short survey so supporters around the state can be identified and updated. Thanks very much.

Now the world really is safe for sex toys

God bless Texas.

A federal appeals court has overturned a Texas statute outlawing sex toy sales, leaving Alabama as the state with the strictest ban on such devices.

The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by up to two years in jail, violated the Constitution's 14th Amendment on the right to privacy.

Companies that own Dreamer's and Le Rouge Boutique, which sell the devices in its Austin stores, and the retail distributor Adam & Eve, sued in Austin federal court in 2004 over the constitutionality of the law. They appealed after a federal judge dismissed the suit and said the constitution did not protect their right to publicly promote such devices.

In its decision Tuesday, the appeals court cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion that struck down bans on consensual sex between gay couples.

"Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct," the appeals judges wrote. "The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence."

Somewhere, Antonin Scalia is grinding his teeth. Which just makes this that much sweeter.

Phil Harvey, president of Adam & Eve Inc., said the 5th Circuit Court's decision was a big step forward. He said his business plans to expand to sell in stores and at home parties, something company consultants had been fearful to do because of the Texas law.

"I think it's wonderful, but it does seem to me that since Texas was one of three states in the country -- along with Mississippi and Alabama -- that continued to outlaw the sale of sex toys and vibrators, that it was probably past time," Harvey said Wednesday.

Better check with the Duncanville City Council before you throw a house party there. I'm just saying.

In 2004, a woman in Burleson, just south of Fort Worth, was arrested for selling two sex toys to undercover police officers posing as a couple. Passion Parties Inc. consultant Joanne Webb, who was not at one of her parties when she sold the devices, initially was charged with violating the state's obscenity law, but a judge later dismissed her case.

Fort Worth attorney Beann Sisemore, who represented Webb, said "it's about time" the law was changed because it was outdated and unfairly targeted women.

"I'm glad we're expanding privacy rights rather than restricting them," Sisemore said.

Yes, of course I blogged about that when it happened. What's the point of having a blog if you can't use material like this?

Back to court, Chuck

Let the fun resume.

A federal judge has ordered District Attorney Chuck Rosenthal back to court to finish a hearing to decide whether to hold Harris County's top prosecutor in contempt for deleting several thousand e-mails after they were subpoenaed in a civil rights lawsuit.

U.S. District Judge Kenneth Hoyt is expected to will hear testimony from Rosenthal, and any other evidence on Feb. 25.

Attorneys for Rosenthal abruptly halted the contempt hearing during his testimony after he admitted making erroneous statements in a sworn affidavit about deleting several hundred e-mails.

Attorneys who aren't involved in the case but were in the courtroom Feb. 1 to hear the testimony have suggested Rosenthal's lawyers want time to review his sworn statements and shield him from a possible perjury charge.

Last update was here. I can't wait to hear what his revised story is. Stay tuned.

Coleman's conviction upheld

Tom Coleman, the undercover cop whose testimony led to the unjust convictions of dozens of citizens of Tulia, Texas, lost his last appeal.

The Texas Court of Criminal Appeals ruled Tom Coleman's aggravated perjury conviction in 2005 should stand.

In 2006, the 7th Court of Appeals in Amarillo upheld the conviction.

Coleman was sentenced to 10 years probation after a jury found him guilty of falsely testifying in a 2003 hearing that he did not learn of a theft charge against him until August 1998. Court documents showed that Coleman had earlier learned of the accusation that he stole gasoline while working for the Cochran County Sheriff's Office.

Not much else out there, but this KVII story says "His appeal was based on many things but the biggest is whether or not the state had the right to use special prosecutors in Coleman's trial." I noted other issues in my last entry. I presume this will be the last we hear from Tom Coleman for awhile, at least until the Tulia movie hits the screens. And while I'm glad that Coleman will finally face justice, I still think he got off too easy.

Grits talks criminal justice with Texas Monthly

Here's a nice little interview that Eileen Smith, in her civilian guise with Texas Monthly, did with Scott Henson.

What do you see as the most pressing criminal justice needs facing Texas today?

The criminal justice system, including every single subsystem, is completely overloaded, with nearly one in twenty adult Texans either in prison, on probation, or on parole. State prisons and county jails are overcrowded and can't find enough guards at current pay rates. The Legislature has created over 2,000 separate felonies for which it's possible to receive a prison term (eleven of them involving oysters). Sentences are longer than ever, and the state can't pay healthcare costs for the aging inmate population. The probation and parole systems have high caseloads that make it difficult to supervise offenders. Counties can't afford to pay lawyers for indigent defendants. Crime labs don't pass muster. The list goes on and on.

We've criminalized so many things and so many people--the system doesn't focus enough resources on protecting people from the most serious threats.

Good stuff. Check it out.

Medina grand jurors want to keep the ball rolling

You have to admire their determination.

A day after finding out they didn't have the legal authority to indict Texas Supreme Court Justice David Medina and his wife in an arson case, former grand jurors said Wednesday they plan to present their opinions to a new grand jury as ordinary citizens.

They won't be allowed, however, to talk about what they heard during most of their time behind closed doors.

"Credible people have been giving information (to us) about who should be subpoenaed to testify and we would tell them about other witnesses that our grand jury asked to be subpoenaed but who were not called," said Bob Ryan, the former grand jury's foreman.

[...]

Should any of the former jurors appear before the new grand jury, they cannot divulge anything they heard before their original term ended.

State District Judge Jim Wallace said the grand jurors aren't legally obligated to remain silent about what they heard after Nov. 2, but asked them to do so.

[Prosecutor Vic] Wisner said Ryan, and any citizen, is welcome to try to get an audience with a grand jury, as long as grand jury testimony, which is secret, isn't divulged.

"I'm thankful I don't have to deal with him anymore," Wisner said. "More power to him, but he may want to wait until a new district attorney takes office in January 2009."

Wisner has long asserted that he wants to go forward with the case, but that there isn't enough evidence.

And he can keep asserting it until the cows come home, it still doesn't make sense. Why would the Harris County convene the grand jury in the first place if they weren't prepared for them to come back with an indictment? Why waste everybody's time? I rather doubt Wisner or anyone else in Chuck Rosenthal's office will address that question.

Ryan said all 11 of his former jurors have said they want the Medina case to be investigated further. He said he would contact the Harris County Grand Jury bailiff to request to make a presentation to a newly impaneled grand jury in February.

"We would welcome the opportunity to present the new evidence in the Medina case," he said.

Citizens, prosecutors or sitting grand jurors can present information for investigations to grand juries.

"Our grand jury handed up indictments with probable case, but the district attorney said we did not have sufficient evidence," Ryan said. "We are going to provide enough evidence with another grand jury so he has sufficient evidence to proceed with the case."

"We believe strongly that the Medinas did something wrong or we wouldn't have indicted them," said Barbara Buck. "We believe it shouldn't go by the wayside. Another grand jury should look into it. I think it should hear our point of view if it is willing."

It's not clear to me how much effect Ryan and the original grand jury can have, given that they can't talk about the evidence they'd been presented. Obviously, any new grand jury can cover the same ground as they, but they'd need to figure out where to go without any input from the originals. I wish them all luck, if for no better reason than we need some kind of closure here, but I think Wisner is correct in saying that not much is likely to happen before 2009.

Medina grand jury disbanded, judge criticizes DA

I saw an earlier version of this story and was all set to get indignant about it, but now I think I'll let the judge speak for me.

A judge criticized the Harris County District Attorney's Office today for not standing behind a grand jury's decision to indict a Texas Supreme Court Justice and his wife in connection the 2007 fire that destroyed the couple's Spring home.

"Why did they bring the case to the grand jury if they didn't want the grand jury to do its job?" state District Judge Jim Wallace asked. "At that point in time, you ought to stand by, and abide by, what the grand jury wishes to do."

The criticism came on the heels of Wallace's decision to disband the grand jury that indicted David Medina and his wife because of a procedural error by Harris County District Attorney Chuck Rosenthal's office, nullifying at least two months of work and maybe more, Wallace said.

He said the case should have been investigated further before dismissing the indictment.

"The unusual aspect of this case is that it was dismissed so quickly," he said. "It should have been allowed to run its course."

Wallace also said he was frustrated because procedural mistakes by the DA's office make it harder to find citizens to serve on grand juries.

"That's my concern, because I know how hard it is to impanel grand jurors," Wallace said. "They think 'Why waste our time?'"

I think that about covers all of the main points, with one exception:

In an open letter to the Houston Chronicle, Assistant District Attorney Vic Wisner defended his quick dismissal.

"Regardless of my personal belief in the merits of a case, I cannot ethically proceed forward if I believe the prosecution will not survive an instructed verdict of not guilty and be an exercise in futility. I do not, nor should any prosecutor, conduct show trials," Wisner said. "If I wanted to help the Medina's and bury the case I would never have bought it to a Grand Jury in the first place."

Wisner wrote that he has asked an "outside investigative agency to pursue the remaining investigative leads" in the Medina case. Reached this evening by phone, Wisner declined to identify that outside agency.

The disagreement over the Medina dismissal, however, was moot because prosecutors failed to file the proper paperwork to extend the grand jury's initial term, which expired Nov. 2, said Medina's attorney, Terry Yates.

Wallace agreed, ruling that the Medina indictments, plus more than 30 others in an unrelated mortgage fraud case, are now null and void.

[...]

Rosenthal on Tuesday denied that politcs played a role in the decision to dismiss the case.

"Absolutely not," Rosenthal said. "It's part of my oath that I don't prosecute people if I don't think there's enough evidence to do so."

Rosenthal said there isn't enough evidence to justify pursing an arson charge against Francisca Medina and an evidence tampering charge against the judge, but that his office continues investigating.

Rosenthal said he isn't aware of any similar procedural errors that could jeopardize indictments handed up by other grand juries.

He said the mistake occurred when the prosecutor who was handling the mortgage fraud case asked that the grand jury be held over, beyond their three-month term. Rosenthal said the prosecutor didn't file the correct paperwork.

He said the chief of his grand jury division retired about a year ago, and the new chief didn't catch the mistake.

He said he didn't think other grand juries have been held over for the past year, so there aren't any other cases that might suffer the same procedural snag.

This is old, familiar turf by now. Under other circumstances, the failure to file paperwork to extend the grand jury's term would be a simple screwup. With all that's gone on with the Rosenthal office, nothing is simple. Nobody trusts his motives or his judgment, so stuff like this takes on a life of its own. There's a simple answer to this, of course. You know the words, so sing along with me: Chuck Rosenthal should resign. That won't address all of the problems in the office, but it'd be a heck of a good start. Cory has more.

Tough times in the DA's office