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Date: Friday, 26 Sep 2014 13:27
One of the first comprehensive statistical analyses of the federal Secure Communities program - which engages local jailers as immigration agents to deport immigrants accused of crimes - found that the program "led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime — homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer."

Texas Sheriffs, take notice and cease participation in this program.

H/T: Sentencing Law & Policy
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "County jails, Immigration"
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Date: Friday, 26 Sep 2014 11:19
FBI chief James Comey criticized Apple and Google this week for new encryption added to their latest smartphone product offerings, declaring “he could not understand why companies would 'market something expressly to allow people to place themselves beyond the law.'”

That statement is either a) utterly disingenuous or b) so ignorant and wrong-headed that it calls into question the man's competence to perform his job.

Apple and Google aren't trying to thwart cops. Cops are exploiting security flaws that leave consumers open to identity theft, stalking and other third-party access to their data. And Director Comey would prefer to put consumers' data and finances at risk than make his agents work a little harder to prove their cases.

Bruce Schneier summed up the conundrum thusly in a recent post: "We have one infrastructure. We can't choose a world where the US gets to spy and the Chinese don't. We get to choose a world where everyone can spy, or a world where no one can spy. We can be secure from everyone, or vulnerable to anyone. And I'm tired of us choosing surveillance over security."

Today, smart phones are increasingly used directly for commerce; e.g., you can pay for your coffee at Starbucks with a smartphone app. And many people have data on their phones they need to secure for reasons that have nothing to do with law enforcement - e.g., an attorney with confidential client information, a doctor accessing personal medical data, or a defense contractor worried about cyber-sleuthing by the Chinese.

You'd think the FBI director would applaud these companies for making personal information more secure from hackers and thieves. That he's adopted this stance instead makes me think Mr. Comey cares less about the public's security than preserving his own agency's power, and that we probably need a different FBI director.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, Fourth Amendment, USDOJ"
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Date: Thursday, 25 Sep 2014 10:25
The Bexar County DA's race may turn out to be as interesting as the ones in Dallas and Houston.

A wealthy trial lawyer from Corpus Christi will give up to $600,000 to Nico LaHood, the Democratic challenger to Susan Reed for Bexar County District Attorney, to purchase TV advertising, the SA Express-News reported. That large a TV buy could make the race competitive, whereas most political observers previously considered Reed a prohibitive front-runner. She defeated LaHood in 2010 by a 54-46 margin.

Reed says the donor, Thomas J. Henry, has ulterior motives for his gift: Payback for her office indicting two attorneys for barratry who had worked for Henry some years ago. LaHood says Henry wants to move to San Antonio and believes the justice system isn't doing enough to combat child abuse. The donor himself has not publicly commented on his role. Who knows the truth? Maybe the guy just doesn't like Susan Reed.

Here's the thing: Even if Reed is 100% correct about why Henry donated so much money, complaints about contributors' influence won't move the needle nearly as much as that much TV advertising will. Your correspondent worked for 14 years as a professional opposition researcher and, though candidates love to complain about their opponent's major contributors, the public just doesn't care. It's not an effective attack. If I were managing Susan Reed's campaign, I'd have her shut in a room 12 hours per day dialing for dollars. If she can't afford to respond to that sort of TV barrage, one wouldn't be shocked to see an upset.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Bexar County, District Attorneys, Electo..."
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Date: Thursday, 25 Sep 2014 09:41
The Texas Department of Criminal Justice is seeking a contract to purchase water from the city of Navasota because of "slightly higher than normal levels of arsenic in the Wallace Pack Unit's water," according to the Navasota County Examiner (Sept. 24). But the city turned them down because the agency expected them to pay up front costs to extend a water line outside the city limits to the 1,800 prisoner facility.

How high is "slightly higher than normal"? TDCJ operates two wells at the Wallace Pack unit dubbed #3 and #4 which pump water out of the Jasper aquifer, one of three significant Gulf Coast aquifers. According to this 2009 report (pdf), "The most wide-spread contaminant in produced Gulf Coast groundwater is arsenic, which commonly exceeds the maximum contaminant level (MCL) concentration of 10 μg/L." However, Well 3 "does not have any horizons that are compliant with the arsenic MCL concentration. The well-head sample had 43 μg/L arsenic and concentrations from different depths within the screen ranged from 40 to 43 μg/L," so more than four times the MCL.

Well #4 had lower levels and "is a candidate for possible well modification" so that they only take water from the shallower depths where arsenic levels are less. Apparently, instead of going that route, TDCJ hoped to simply purchase water from another source. Now, it's on to Plan B, whatever that is.

In the meantime, arsenic contamination rates four times the allowable level sounds to me like a bit more serious a problem than "slightly higher than normal," as the Navasota paper described it. 

It's possible that high arsenic levels in the long term could drive up TDCJ health care costs. According to the Natural Resources Defense Council, the National Academy of Sciences found that "arsenic in drinking water causes bladder, lung and skin cancer, and may cause kidney and liver cancer. The study also found that arsenic harms the central and peripheral nervous systems, as well as heart and blood vessels, and causes serious skin problems."

The Wallace Pack unit is in an area southwest of Huntsville with lots of other prison units relatively nearby. I wonder how many others get their drinking water from arsenic-contaminated wells and face similar dilemmas? If readers are aware of other units facing these issues, please let me know in the comments.

See prior, related Grits coverage:
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "TDCJ, water"
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Date: Wednesday, 24 Sep 2014 09:10
The Washington Post published a remarkable and disturbing story (Sept. 23) revealing that not just the Harris Corporation but the FBI required local police using IMSI catchers (or "stingrays") to monitor cell phone traffic to sign non-disclosure agreements (NDAs) about their use. The article opened:
The FBI requires state and local police to keep quiet about the capabilities of a controversial type of surveillance gear that allows law enforcement to eavesdrop on cellphone calls and track individual people based on the signals emitted by their mobile devices, according to a bureau document released recently under a Freedom of Information Act request.

The December 2012 document is a heavily redacted letter between the FBI and police in Tacoma, Wash., as the local department sought to acquire an IMSI catcher, sometimes described as a “fake cellphone tower” because it tricks individual phones into routing their calls and other data through the surveillance equipment. The Tacoma police were buying gear produced by Harris Corp., a Florida-based company that makes the StingRay and other IMSI catchers used by law enforcement agencies across the country.

The FBI letter, which was not classified but was designated as "law enforcement sensitive," told the Tacoma police chief that the Federal Communications Commission authorizes the sale of such surveillance equipment to state and local police departments on the condition that they first sign an FBI “non-disclosure agreement.”
The details of the agreement are redacted from the letter as released; the blacked-out portions stretch across the bulk of a six-page document, which was first published on Monday by MuckRock, a news site that helps journalists, researchers and others submit Freedom of Information Act requests and publishes the results.
It had earlier been reported that the manufacturer of the device, the Harris Corporation, required its customers to sign nondisclosure agreements. But now we discover the feds have one, too - one that's apparently required by the FCC according to the letter Muckrock uncovered, though apparently not in its public rules. The Associated Press had written earlier (June 12) about the feds' attempts to conceal information about stingray use by local police, including a detail that foreshadowed this recent news:
Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies.

A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.
To judge from that account, the NDA requirement stems from an "authorization agreement" with the FCC rather than a formal public rule. (A report from the Daily Caller alleged that the Harris Corporation misled the FCC, claiming the tech would only be used in "emergency situations" as opposed to routine investigations.) But the document discovered by Muckrock is the first we've learned of NDAs between the police and the FBI. It seemed grotesque when it was thought the Harris Corp. was requiring the NDAs. Now we know that the Department of Justice is not just complicit in that deceit but a formal party to the contract. And the FCC, instead of requiring phone companies to fix security vulnerabilities, are licensing private companies to exploit them for profit.

Indeed, it appears federal agencies actively encouraged local law enforcement to lie when they find evidence using the technology, claiming the information came from an informant. Again from the Post:
E-mails collected through a separate Freedom of Information Act request, by the ACLU, showed in June that the U.S. Marshals Service had asked police in Florida to not reveal that they had used IMSI catchers in determining the locations of criminal suspects. Instead, the police were instructed to say that they had learned the whereabouts of suspects using “a confidential source.”
Has the US Marshals Service never heard of Brady v. Maryland?

I wonder, given passage of the Michael Morton Act, with its pro-active requirement to disclose inculpatory as well as exculpatory evidence, whether Texas police are following the feds' advice and lying in official documents when they use these devices?  One would hope not, but then one would also hope the cops would have better sense than to sign a non-disclosure agreement that contradicts with state open records law. (We know the Fort Worth and Houston PDs own IMSI catchers, and probably DPS: Likely other agencies in Texas own them, too.)

Either way, it's no wonder there hasn't been a wider public outcry about the use of such spy tech without warrants nor public disclosure: The government has gone to tremendous lengths to conceal these activities.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, Stingrays, USDOJ"
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Date: Monday, 22 Sep 2014 12:07
Dallas defense attorney Michael Lowe had a probative, recent blog post on a topic much-discussed in this venue titled, "Texas police can get your phone records from phone company without a warrant: Ford v. State" (Sept. 3). A particularly notable point mentioned that, before Ford v. State:
many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get ... location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.

Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf
Perhaps the misunderstanding Mr. Lowe describes explains the bizarre confusion demonstrated at the recent Texas Senate State Affairs Committee regarding how to interpret Art. 18.21 of the Code of Criminal Procedure. If Lowe is right that many in law enforcement believed before Ford that a warrant was required, that might explain Houston PDs position. But prosecutors from Harris and Bexar counties must have known about Ford and a similar recent case out of the 14th Court of Appeals (Barfield v. State). And the portions of the statute courts are interpreting did not change with the new language from last session on cloud-based content.

Grits will readily grant the statute on its face is unclear - its plain language offers police a range of options for getting this information, from an administrative subpoena to a full-blown warrant. (In Barfield, police used a subpoena to access location data; in Ford, police obtained a court order using a lesser standard than a probable cause warrant.) But as Mr. Lowe pointed out, case law leaves no ambiguity: At the moment, unless the Legislature changes the law in 2015, no warrant is required in Texas for the government to access cell-phone location data.

MORE: See additional coverage from the Houston Press of last week's State Affairs hearing and law enforcement's strange stance on whether warrants are required for location data.
many have believed (including lots of police departments and sheriffs’ offices) that Texas Code of Criminal Procedure art. 18.21 mandates a search warrant before law enforcement can go to your phone company and get cloud-stored phone data, content, and location information. The Ford opinion makes it clear that this is not how 18.21 is to be read.
Which means that Texans need to know that cell phone company records may be reviewed by the police without them knowing anything about it — and what is found there may be used against them in a criminal proceeding.
- See more at: http://www.dallasjustice.com/texas-police-can-get-your-phone-records-from-phone-company-without-a-warrant-ford-v-state/#sthash.p5P2TsIm.dpuf
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, Judiciary, Privacy"
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Date: Sunday, 21 Sep 2014 11:50
Here are a few items from the last week that may interest Grits readers but which lost out in the competition for time with my paid work:

Tim Cole memorialized by VIPs at statue unveiling
Lubbock this week unveiled a 13-foot tall statue of Timothy Cole, who was falsely convicted of rape in that county and died in prison before his innocence could be proven. Lots of VIPs there, including Gov. Perry and both the Democratic and Republican nominees to succeed him. See CNN's coverage, AP, and the Lubbock Avalanche-Journal. Perhaps the best way politicians could honor Timothy Cole next session would be to pass the final, unfinished recommendation from the Timothy Cole Advisory Panel: Requiring police to record custodial interrogations for serious offenses.

Texas Association of Business goes 'Smart on Crime'
A left-right "Smart on Crime" coalition formally announced this week including the Texas Public Policy Foundation, my part-time employers at the Texas Criminal Justice Coalition, the Texas Association of Business, and Goodwill Industries. The big news here really is the Texas Association of Business stepping up to the plate more seriously on the subject. Their interests are mainly in continuing adequate supply in the labor market, but at this moment in history that aligns their interests with less-government reformers on the left and right who think limited state resources should be spent on more productive endeavors than incarceration.

Abuses reveal Houston cops' mercenary view of ticket writing
Prosecutors in Houston will dismiss hundreds of Class C charges, reported the Houston Chronicle (Sept. 18), because four police officers lied on the tickets, claiming their colleagues were present at the stop so they could cheat on their overtime records. The four officers were recently "relieved of duty" and are "being investigated for criminal conduct." One frequently hear politicians claim the purpose of ticket writing is to enforce the law, not generate revenue.  But for these cops it was about generating revenue: overtime, for themselves.

Harris DA candidates: End key-man system of grand jury selection
Both R and D District Attorney candidates in Harris County believe the key man system of selecting grand juries should be eliminated, reported HouChron columnist Lisa Falkenberg (Sept. 18). So do I. Problem is, judges make those appointments and nobody can tell them what to do but the Legislature. So if you want to change how grand juries are picked, the candidates might be running for the wrong office. I'm old fashioned that way, but I'd prefer the candidates debate stuff that's actually part of the DA's job.

The Driver Responsibility surcharge is still a catastrophe
The Texas Observer's Forrest Wilder has a column decrying Texas' Driver Responsibility surcharge; nothing regular Grits readers haven't heard before but he outlines the problem well and expresses the appropriate level of outrage at one of the most dysfunctional programs in all of state government.

Who is operating fake cell phone towers in Texas, US?
Popular Science wondered, "Who is running the phony cell-phone towers around the US?" (Sept. 15). Like me, they think it's probably cops and spooks. See prior Grits coverage.

Making slime
Off topic, but this was a lot of fun to do with the granddaughter this morning. A big hit. Eight year olds love to make slime.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "cell phones, District Attorneys, grand j..."
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Date: Friday, 19 Sep 2014 09:17
I mentioned that your correspondent testified the other day to the Texas Senate State Affairs Committee on electronic privacy issues. At the same hearing,  the committee took testimony from staff only on another interim charge, "Study the online legislative resources available to the public from Texas Senate Committee websites and compare resources to those provided by other state legislative committees in Texas and other states. Determine how Texas Senate websites can be improved to provide a more interactive and transparent government."

Texas' legislative websites are better than most. But as the committee discussed the topic, a few recommendations came to mind that weren't mentioned in the invited testimony. Here are Grits' two cents, as somebody who uses legislative websites quite a lot:

Place the contents of the committees' backup notebooks online. Before every committee hearing, members are typically given a paper packet of material by committee staff that includes written testimony, background information, potential amendment language, and other materials related to the bills they're hearing. But audience members or people viewing online can't see what they're looking at. In nearly all cases, staff receive this information electronically and could post it online or easily scan it into a pdf form. Invariably these are open records that could be obtained with a request, but there's value in being systematically, preemptively transparent on every bill. Doing so would give people a lot more information about public policy debates and more confidence in their representatives' decisions. 

Make meeting minutes (slightly) more detailed, listing not just bills but speakers along with the time each started so it's easier to find their testimony on video. Meetings can often last for hours during session, covering many bills, and it'd be incredibly useful to have the meetings better indexed so people who couldn't attend can easily find the parts they're interested in.

Do not delete old data, video, etc., just because you add new content. Some agencies do this, removing old information when new reports come in or arbitrarily removing old information from their sites beyond a certain date. Storage is cheap and an historical record is not just valuable for government but imperative.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Media, Open records, Senate State Affair..."
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Date: Thursday, 18 Sep 2014 15:26
I only saw two news outlets covering electronic privacy debates at the Texas Senate State Affairs Committee meeting yesterday:
The meeting was led by new Chairman Craig Estes who last session sponsored legislation to require a warrant for cell phone location data. See my own written testimony to the committee on behalf of the Texas Electronic Privacy Coalition. The key TXEPC recommendations, fleshed out in greater detail in the full written testimony, included themes familiar to Grits readers.:
  • Require law enforcement to obtain a search warrant to obtain historic cell-phone location data.
  • Require a warrant to install GPS tracking devices on vehicles.
  • Centralize use of 'stingrays,' aka, IMSI catchers at DPS the way the state does wiretaps and require a warrant for their use.
  • Limit data retention on innocent drivers for automatic license plate readers, limit access to the databases to trained, authorized personnel, and restrict sale of data.
  • Evaluate the Department of Public Safety's unilateral decision to take all ten fingerprints when drivers obtain or renew their licenses based on potential privacy violations involving personal electronic devices using fingerprints in lieu of passcodes.
A big highlight for me was expert testimony by Chris Soghoian, a tech expert now working for national ACLU whose dissertation (pdf) first broke open this issue and spawned my own interest in these location-data issues. Thanks, Chris, for coming down!

The hearing took a strange turn, as prosecutors and a detective from the Houston Police Department insisted that changes to state law last session meant law enforcement already had to get a warrant to access cell phone location data. I'm not a lawyer, but that seems downright bizarre since the bill to require a warrant for location data failed; only content, not "metadata" (as it has come to be called post-Edward Snowden), was protected in the language that passed in HB 2268.

The prosecutors' new stance is especially odd because two different Texas appellate courts ruled in recent months affirming no warrant is currently required in Texas to obtain historical cell-phone location data. The US Fifth Circuit Court of Appeals ruled the same way, creating a federal circuit split. (See a related, earlier Grits discussion.) Indeed, the portion of Sec. 5 in Art. 18.21 of the Code of Criminal Procedure that the Fourth Texas Court of Appeals decision in Ford v. State relied upon was not changed in the amendment to HB 2268 requiring warrants for content. I just don't understand how that claim can be justified.

A case summary of Ford on the prosecutors association website even recommended their members rely on the case for precedent in the future ("Because there is precious little caselaw that construes Article 18.21, this decision could turn out to be helpful to others on that basis as well"). And in Barfield v. State, police obtained cell-phone location with an administrative subpoena and Texas' 14th Court of Appeals in Houston upheld it being admitted into evidence. (The Department of Insurance testified that it, too gets cell-phone location data with only a subpoena.)

There appear to be no court cases supporting this novel view that Texas law already requires a warrant to access cell-phone location data. Its proponents could not even provide examples of local district judges suppressing location data, nor of any jurist denying police access to this information. All they offered were hypotheticals.

But no matter how often they kept repeating that the law requires a warrant now, your correspondent simply sees no evidence for the claim. Again, I'm not a lawyer. But attorneys for service providers like Data Foundry and Golden Frog also insisted that warrants are not required in Texas presently for law enforcement to access location data. And that was certainly the universal, contemporary understanding at the time the 83rd session ended. Just a weird debate to have.

The Observer piece by Eric Nicholson summed up the odd tenor of the event thusly: "The debate over whether warrants are currently required is a bit of a head spinner. (Cops are in the paradoxical position of arguing both that warrants are necessary to obtain cell-phone metadata and that they will fight efforts during the 2015 legislative session to require warrants for cell-phone metadata.)" To be sure, I hope they're right and I'm wrong. I want a warrant requirement for these records in Texas (and nationally, though your lowly correspondent can't do anything about that). But until the judiciary agrees a warrant is required, it's hard to buy what police and prosecutors were selling at yesterday's State Affairs hearing.

Go here if you'd like to watch the whole thing online.

MORE: I was interviewed this afternoon along with Rep. Bryan Hughes on the Texas Public Radio show The Source about yesterday's hearing and location tracking issues generally. Go here to listen to the broadcast.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "biometrics, cell phones, Driver licenses..."
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Date: Thursday, 18 Sep 2014 14:42
Several days ago on the Texas District and County Attorneys Association user forum, prosecutor Terry Breen from Goliad suggested that, although "The TDCAA has a long standing policy of being neutral on pending legislation. This needs to change."

Why? "During the last legislative session," Breen alleged, "the result of this passivity was the passage of the Michael Morton Act, which expanded the defendant's right to discovery from exculpatory and mitigating evidence--'Brady material'--to include effectively any relevant evidence, including incriminating evidence that the state might wish to not even use at trial." (This, btw, is revisionist history: TDCAA was intimately involved in negotiating the language of the Michael Morton Act; it was their decision to drop the demand for reciprocal discovery that got the deal done.)

Mr. Breen believes that, "The Association should come out publicly for repeal of this ghastly and costly mistake, and then campaign vigorously to that end. Since the act is a costly unfunded mandate on the counties, county judges should be recruited to press for its repeal as well."

His jeremiad, though, has thus far been met with an uncomfortable silence on the normally active user forum. If there's an uprising on the horizon, it's not showing up in that venue. Long-time readers may recall that Mr. Breen made similar complaints when the bill first passed and not all of his colleagues agreed with him. Grits admits the law may not be perfect but has argued that, since it only took effect in January with seemingly no major hitches - beyond a few DAs grumbling about unfunded mandates - the Legislature should leave it alone for a session to give counties around the state time to implement it, judges time to rule on it, appellate courts a chance to consider it, etc., and then evaluate how it has played out. They'll have a lot more information to work with if the Lege evaluates and possibly tweaks the Michael Morton Act in 2017, perhaps making it the focus of some committee's interim charge.

But Mr. Breen doesn't want to tweak the law, he wants to repeal it, going back to what I suppose in his mind's eye were the good old days when he got to decide what defense attorneys did and didn't see in his case file.

Whatever one's view of the Michael Morton Act, and Grits is a strong supporter, Breen is deeply misguided to encourage TDCAA to actively campaign for or against legislation. Too many prosecutors disagree on these and various other questions for the association to always speak with one voice. It would put their full-time staff in an impossible position.

Besides, it's not true TDCAA takes no positions on legislation. They register as officially neutral but routinely speak for or against bills all the time in such an obvious fashion that it's a bit of a running joke in the committees before which they routinely testify. They also facilitate elected DAs and their reps showing up at the capitol to testify and they definitely take positions. This feigned neutrality has been quite an effective tactic for TDCAA over the years and if they began taking pro/con positions bill-to-bill, as Breen asks, it would reduce their effectiveness at the capitol and needlessly create divisions among their base.

If I were their political consultant, I'd discourage TDCAA from taking Breen's advice. OTOH, there's a darker side of me that considers, as a supporter of reforms like the Michael Morton Act, that criminal-justice reformers can only benefit if the prosecutors association were to adopt less effective tactics or even implode through internal dissent. But it appears the group's leadership is probably smarter than that. Don't take the bait, Rob and Shannon. Y'all know better.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Discovery, michael morton, TDCAA"
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Date: Thursday, 18 Sep 2014 09:59
Sarah Pahl, a policy attorney at the Texas Criminal Justice Coalition, testified yesterday to the Texas Senate State Affairs Committee on the subject of "the widespread storage and sale of criminal records information." See her written testimony (pdf). Among her findings:

  • In Texas, nearly 12 million individuals are included in the state criminal history records.
  • Employers and housing providers often rely on inaccurate or incomplete criminal records. The Texas Department of Public Safety reported in January 2013 that only 81% of Texas adult arrests in 2011 had a reported disposition. In other words, nearly 1 in 5 of all Texas criminal records do not include final dispositions.
  • Various public agencies across Texas jurisdictions participate in selling criminal records to private entities. These include, but may not be limited to:
    • County and District Courts (Clerk’s Office)
    • Texas Department of Public Safety (DPS)
    • Criminal Justice Assistance Division (CJAD), a division of the Texas Department of Criminal Justice 
  • [P]rivate entities that purchase criminal records – whether from county and district courts, TDCJ, or elsewhere – are not routinely notified of updates reflecting orders of nondisclosure, expunction, or even final dispositions. Countless individuals are adversely affected by this practice that encourages the widespread dissemination of outdated and incorrect criminal records.
Sen. Eddie Lucio could hardly believe that 12 million Texans have criminal records in a state of 25 million or so. But her source is a federal Bureau of Justice Statistics report (pdf, see Table 1). In that document, she observed in a footnote, "The number of individual offenders in the state criminal history file was 11,824,200." I understand being surprised, though, that's a vast figure. I recall former state Sen. Elliot Shapleigh being similarly shocked when he learned that more than ten percent of Texans at any given time were wanted by the police. (Not to get sidetracked, but much of that has to do with the wretched Driver (Ir)Responsibility Surcharge.)

In any event, here are Pahl's/TCJC's IMO well-considered recommendations:
  • Restrict the sale of criminal history record information to private entities until a final case disposition is entered
  • Prohibit the bulk sale of criminal history record information and mug shots.
  • Alternatively, allow the Texas Department of Public Safety (DPS) to be the only clearinghouse for the sale of criminal records, which will ensure uniformity of all record sales and compliance with updates to records (e.g., orders of nondisclosure and expunction).
Further, Pahl suggested the state "Reform the qualifications and procedures related to orders of nondisclosure, which limit access to (vs. completely expunge) criminal records." In particular, they should:
  • Expand the eligibility criteria for nonviolent offenses and reduce waiting times before being permitted to petition for orders of nondisclosure.
  • Reform the e-filling system to allow for a streamlined web-based petition process that allows individuals to petition without an attorney.
  • Prohibit the forfeiture of the right to nondisclosure in plea agreements.
  • Prohibit third parties from asking individuals to request records that are subject to an order of nondisclosure.
On expunction, Pahl suggested the Legislature should:
  • Expand eligibility criteria required to expunge criminal records.
  • Provide automatic expunctions of arrest records for cases that do not result in a conviction.
  • Allow judges to automatically expunge records for those who successfully complete specialty court programs.
  • Require filing attorneys to be served with notice by anyone who files an answer to a petition for expunction.
  • Require the Texas Department of Public Safety (DPS) to certify compliance with orders of expunction.
Go here to see her full testimony, these are just top-line excerpts. 

In the interest of full disclosure, your correspondent is currently performing consulting work for TCJC on a separate matter. I suppose Grits should also mention that I testified at the same Senate State Affairs Committee meeting on behalf of the Texas Electronic Privacy Coalition regarding the committee's interim charges on requiring warrants for electronic metadata, which was a bit of a surreal experience. More later on how that went.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "background checks, crime data, employmen..."
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Date: Thursday, 18 Sep 2014 08:53
Yesterday, the Texas Court of Criminal Appeals threw out Hannah Overton's capital murder conviction based on ineffective assistance of counsel and ordered a new trial. See coverage from Texas Monthly and the San Antonio Express-News.

Also on yesterday's hand-down list, the court invalidated Texas' improper photography statute as unconstitutional on First Amendment grounds. See Chuck Lindell's coverage at the Austin Statesman. Last year the court struck down Texas' online solicitation of a minor statute on First Amendment grounds as well, readers may recall, and Houston attorney Mark Bennett thinks there's more to come.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "CCA, First Amendment, ineffective assist..."
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Date: Wednesday, 17 Sep 2014 18:20
Holy God! I hardly know what to make of this! From the San Antonio Express-News ("Lawsuit: Texas prison okays odd sex assault," Sept. 26):
A lawsuit filed against the Corrections Corporation of America in Austin alleges the private prison company violated a former prisoner's constitutional rights by allowing a hazing tradition called "ass on the glass" that led to a sexual assault.

The suit, filed in federal district court, claims a Bartlett State Jail guard knowingly allowed the man, referred to as John Doe in the court documents, and more than 50 other prisoners to be subjected to the hazing tradition that involves forcibly stripping an individual, turning him upside down and slamming his buttocks against the glass of a guard's station.

During a two-hour incident last October in which all 55 prisoners in the cell block were subjected to the hazing, a prisoner allegedly "inserted his finger into Mr. Doe's anus, and another grabbed his testicles, sexually assaulting him in violation of the Texas Penal Code," according to the documents.

The defendant claims that the one officer on duty, responsible for four cell blocks with 55 prisoners in each, "watched dozens of men get slammed up against the glass wall" and "did nothing." ...
 The Bartlett State Jail, a men's prison, is located in Williamson County and has 140 security employees and a capacity of 1,049 inmates, according to the TCDJ.
The Texas Civil Rights Project is handling the case. TCRP attorney Scott Medlock, formerly an attorney with the Texas Civil Rights Project, told the Express-News that "the man was sentenced to 180 days in state jail for possession of less than a gram of a controlled substance. He said the defendant 'made a mistake, was punished for the mistake, but did not deserve to be sexually assaulted.'"

Of course, for now these are only allegations, but they're certainly disturbing ones. If they're true, it makes you wonder about a) the effectiveness of TDCJ contract monitoring with private prisons and b) whether Corrections Corporation of America's recently announced commitment to preventing recidivism and reentry programs could possibly jibe with the organization's historic institutional culture.

In the meantime, add the Bartlett State Jail to the list of facilities the Legislature might consider shuttering if they decide to close more prisons. If its institutional culture was tolerating this, it's hard to imagine staff there will suddenly shift toward a rehabilitation mindset. Better to just end the contract and cut bait.

MORE: From Texas Prison Bidness.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "sex crimes, TDCJ, Williamson County"
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Date: Tuesday, 16 Sep 2014 21:04
Here's an incredibly positive sign for drug sentencing reform from Texas House Corrections Committee Chairman Tan Parker, as reported by the Dallas Morning News' Rodger Jones on their Opinion Blog (Sept. 16):
in an interview with the editorial board yesterday (along with his Democratic opponent, Daniel Moran, a UNT student), Parker said he would support legislation eliminating jail time for possession of small amounts of marijuana. His position reminded me of Gov. Rick Perry’s statement this year that, “You don’t want to ruin a kid’s life for having a joint.”

Parker’s position is interesting, coming from the chairman of the House Corrections Committee who’s regarded as pretty conservative. If Parker occupies this space on drug policy, it could indicate movement by more Republicans than I would have expected for next session.
Check out the rest of Jones' rather lengthy, noteworthy discussion with Chairman Parker. Remarkable.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "drug policy, marijuana"
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Date: Monday, 15 Sep 2014 10:19
The justification for mass incarceration has always been public safety. But this new analysis from the Pew Charitable Trust shows that "higher threats of incarceration don't actually deter criminal activity." Indeed, states which reduced incarceration rates saw similar or even greater reductions in crime from 1994 to 2012 than those that expanded their number of prisoners. For example, New York State reduced its incarceration rate the most over this period (by 24 percent) but also saw the largest reduction in crime. Meanwhile the state with the greatest rise in incarceration rate (percentage-wise) was West Virginia, which expanded its prison population by 195 percent while it was the only US state to see crime INCREASE over this period.

RELATED: On my "to read" list is a new, seemingly exhaustive analysis by the National Academy of Sciences (published in May) titled "The Growth of Incarceration in the United States: Causes and Consequences" (pdf). It's a fat tome but delves deeply into the substance of why crime reduction and mass incarceration seem at best tenuously linked and explores other theories and factors that may explain the counter-intuitive data.
Author: "Gritsforbreakfast (noreply@blogger.com)"
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Date: Monday, 15 Sep 2014 09:44
A Sheriff's deputy in Wise County has been arrested in a bizarre incident. Sgt. Chad Hightower told sex offenders the state now required him to photograph them nude. He even told one fellow he must achieve an erection for the photo shoot, which took place in the police impound yard. Unreal.

Apparently similar photos were found on the deputy's camera involving other sex offenders, which to me indicates how easily this powerless population may be manipulated and abused. They've been stripped of so many rights, subjected to so many degradations, that it's near-impossible for a layperson to judge the legitimacy of such demands and requires tremendous courage to confront abuses.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "sex crimes, sex offender registration, W..."
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Date: Monday, 15 Sep 2014 09:35
Austin pays our cops too much, has too many of them, and most of our city council is in the pocket of the police union. So thanks to Bill Spelman and Laura Morrison for at least trying to inject reason (and math) into the city's dysfunctional budget discussions. Reported the Austin Chronicle:
"public safety" (police, fire, EMS) will consume 70% of next year's $854 million GF budget (even excluding municipal courts), with APD alone representing 42%. Parks and libraries (generally cut first in lean times) together consume 13%; and Health and Human Services (contributing at least partly to "public safety") is another 6%. That's quite nearly everything – and it also bears emphasis that the public safety portion continues to grow, a trend that is literally unsustainable.

Unless, of course, we're prepared eventually to spend our money on police, fire, and emergency services, and nothing else. Failing that, Spelman's hoping that come 2015, at least some of the incoming Council members will realize that while public safety might be a sacred public obligation, public safety spending is not necessarily a sacred cow.
Author: "Gritsforbreakfast (noreply@blogger.com)"
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Date: Monday, 15 Sep 2014 09:30
Texas' warrantless blood draw statute has been challenged and in some cases declared unconstitutional by intermediate state appellate judges in the wake of the Supreme Court's 2013 McNeely decision.  Tyler's 12th Court of Appeals became the latest to contend "the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment."

Another pro-Fourth Amendment opinion from a Texas appellate court on the topic came in July from the Fourth Court of Appeals in San Antonio, ruling that "warrantless searches are presumed unreasonable and must be justified on a case by case basis."

The SA Express News editorialized recently that the Court of Criminal Appeals should pick up a case to clarify the issue, and at some point they surely will. But if they go against the lower courts and uphold the current statute, we might see the issue challenged again at SCOTUS.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "DWI"
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Date: Sunday, 14 Sep 2014 10:13
According to this list on the Attorney General's website, there have been 3,680 peole who've died in custody of state and local law enforcement in Texas since 2005, which seems like a remarkable number - roughly one per day. Nearly half the deaths happened in TDCJ units. Here's an excel file with a list of the deceased.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "Attorney General, death-in-custody"
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Date: Sunday, 14 Sep 2014 09:04
Former TDCJ flak Michelle Lyons saw her wrongful termination lawsuit against the agency reinstated last week after the 5th Circuit Court of Appeals overturned a summary judgment ruling by the trial judge. Readers may recall Lyons was accused of lying on her time sheets. But, reported the Huntsville Item (Sept. 10):
The circuit court said the lower court and TDCJ did not mention evidence that could have led a jury to favor on Lyons’ side. That evidence was a statement by Lyons’ then-supervisor Larry Fitzgerald, who retired in 2003.

“I explained to Ms. Lyons that since she was an exempt employee she was not eligible for overtime,” Fitzgerald said in part of his affidavit. TDCJ said Lyons’ inaccurate timesheets led to her demotion in 2012. “Therefore, it was not necessary for her to track her hours to the minute on a day-to-day basis. I also explained to her since she was an exempt employee it was not necessary for her to work a set shift.”
Fitzgerald explained that this was because of the erratic hours public information officers worked. Rather than minute-by-minute timekeeping, Fitzgerald told Lyons she was responsible for working a minimum of 40 hours per week and to mark her records for “eight hours in the office per day.”
The circuit court said that a “reasonable jury,” along with evidence showing her co-worker also failed to follow the timesheet policy, could conclude that public information officers were an exception to the rule. The court said that should’ve been debated by a jury.
If proven true, the court also said that could be seen by a jury as the “selective application of a facially neutral policy.” In other words, if the policy was equally applicable to all employees as TDCJ claimed, why were public information officers treated differently and why was Lyons treated differently than her co-workers?
But the court also said there is a factual question as to whether the timesheet violations were “the actual reason for her demotion or a pretext, TDCJ was not entitled to summary judgment.”
On the final question, there's very little doubt Lyons' firing over time sheets was mere pretext. She was public information officer at an agency which over the years has become more insular and opaque and, at root, would prefer the public had as little information about it as possible. As far as I can tell, she was fired for doing her job. Now perhaps a jury will get to decide. Or perhaps TDCJ will settle to prevent Ms. Lyons from taking the stand and revealing where all the (metaphorical) bodies are buried.
Author: "Gritsforbreakfast (noreply@blogger.com)" Tags: "civil rights lawsuits, Media, TDCJ"
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