From ProPublica: He Was Convicted of Killing His Baby. The DA’s Office Says He’s Innocent, but That Might Not Be Enough.

Occasionally mass hysteria creates conditions where the public - and elected officials - become focused on a problem that in hind-sight was not as wide spread as it later proved to be. 

A couple decades ago that included shaken baby syndrome. 

Suddenly an increasing number of parents whose infant children suddenly died were being accused of causing their child's death by shaking them violently enough to cause fatal brain damage. Many were found guilty.

Soon after, questions emerged about whether these verdicts were based on bad science and were driven by zealous prosecutors looking for headlines (remember that we elect our district attorneys).

- See: Rethinking Shaken Baby Syndrome.

But reversing convictions is difficult to do. This article describes such an effort. It can be tough to prove one is actually innocent of a crime after conviction.

- Click here for the article.

Here's a bit of it: 

If Eaton concluded that a conviction was no longer supported by the evidence, she was expected to go back to court and try to undo that conviction. The advent of DNA analysis, and the revelations that followed, did not automatically free people who were convicted on debunked evidence or discredited forensics. Many remain locked up, stuck in a system that gives them limited grounds for appeal. In the absence of any broad, national effort to rectify these convictions, the work of unwinding them has fallen to a patchwork of law-school clinics, innocence projects and, increasingly, conviction-review units in reform-minded offices like Nashville’s. Working with only one other full-time attorney, Anna Hamilton, Eaton proceeded at a ferocious pace, recruiting law students and cajoling a rotating cast of colleagues to help her.

From the Houston Press: DA Ogg, Police Leaders Announce Landmark Marijuana Diversion Program

A product of the fact that county officials are elected by county voters.

- Click here for the article.

District Attorney Kim Ogg and heads of local law enforcement announced Thursday that, starting March 1, all police agencies in Harris County will no longer arrest people caught with four ounces or less of marijuana, and the DA's office will no longer be prosecuting those cases.

The remarkable move, which Ogg had championed throughout her 2016 campaign, pushes the third largest county in the nation to the forefront of marijuana reform in places where it is still illegal. Harris County will join only the Brooklyn County District Attorney's Office in New York in choosing to divert misdemeanor marijuana defendants away from jail entirely, saving taxpayers millions of dollars and saving thousands of people the lifelong burden of a criminal record.

Instead of being arrested and hauled off to jail, low-level potheads and casual smokers will instead be asked to take a four-hour decision-making class, at a cost of $150 (exceptions will be made for indigent people). Harris County Sheriff Ed Gonzalez, Houston Police Chief Art Acevedo and Mayor Sylvester Turner joined Ogg in developing the landmark policy. It replaces former district attorney Devon Anderson's First Chance Diversion Program, which only applied to first-time offenders caught with less than two ounces, which Ogg had criticized as being too narrow.

“At 107,000 cases over the last ten years, we have spent in excess of $250 million dollars collectively prosecuting a crime that has produced no tangible evidence of improved public safety,” Ogg said. “Additionally, the collateral damage to our workforce is immeasurable — because what we have done is we have disqualified, unnecessarily, thousands of people from greater job, housing and education opportunities by giving them a criminal record for what is in effect a minor law violation.”

And of course, there's an effort to push back against the initiative.

- Houston Chronicle: Ogg under fire for new marijuana plan.

From the Houston Chronicle: Shake-up at the courthouse: Incoming DA Ogg hands pink slips to 37 top prosecutors

Harris County's new District Attorney is changing the direction of the office.

- Click here for the article.

In her first major action as Harris County's incoming district attorney, Kim Ogg announced Friday she had shown 40 prosecutors the door in a massive shake-up that eliminated a senior level of supervisors and career trial attorneys.

Ogg, who was elected in November as the county's chief prosecutor, notified 37 attorneys Friday that their services would not be needed when she takes office Jan. 1. Three others retired before Ogg's emails went out.

"Change is coming," she told reporters after news broke that more than 10 percent of the 329 lawyers in the DA's office would not be returning in the new year. "Like any good team that has suffered some under-performing seasons, we're changing management. My administration is heading in a new direction."

The terminations had been expected as Ogg - who ran on a campaign of reform - installs her own lieutenants and administrators with a new organizational structure.

. . . Under Anderson, the district attorney's office has a hierarchy that includes about six bureau chiefs, more than 20 division chiefs and dozens of trial and section chiefs who oversee staff lawyers.

Ogg got rid of a number of Anderson loyalists and some prosecutors tied to scandals that have erupted over Anderson's three-year tenure.

Ogg said the majority of her termination decisions fell on longtime employees who worked as supervisors. She declined to discuss specific employees but said her primary focus was to eliminate management positions created by her predecessor.

"It's a difficult process and one that is entirely necessary," she said. "Of the lawyers who were released or given the opportunity to resign, most are eligible to retire. Few of them handle cases on a day-to-day basis."

Some of the highest-ranking prosecutors to go include First Assistant Belinda Hill, Chief of Staff Kathy Braddock and top lieutenants Maria McAnulty, Karen Morris, Roe Wilson, Dick Bax and Jane Waters, all of whom were bureau chiefs. Craig Goodhart and Terrance Windham, who also were bureau chiefs, recently retired.

Other well-known prosecutors who were asked to leave the office include three division chiefs: Julian Ramirez over civil rights; Bill Moore over major frauds; and Lance Long over the major narcotics cases. Also notified that they will be leaving are Alison Baimbridge, who prosecuted high-profile DWI cases and other vehicular homicides; Alan Curry, an appellate chief who successfully argued before the U.S. Supreme Court; and Inger Chandler, who headed the conviction review section.

I'll hunt around for an organizational chart of the office - both old and new. It'll add useful content for 2306.

From the Houston Press: What You Can Expect to See Under Kim Ogg as Harris County District Attorney

A look at what to expect from one of the few bright spots for Democrats last week

- Click here for the article.

After defeating Republican incumbent Devon Anderson at the polls, Democrat Kim Ogg is taking over the Harris County District Attorney's Office in a contentious time for criminal justice in Houston, in Texas, and frankly, in the United States. She will become the gatekeeper with the power to decide who belongs in the overcrowded Harris County Jail, the third-largest in the country, and will wield the power to rewrite policies that either strengthen or weaken punishment for those charged with low-level, nonviolent crimes.

And Ogg will take over just as a perfect storm brews for criminal justice reform here in Harris County, at every corner of the system. She takes over as the county, its misdemeanor judges and bail hearing officers face a lawsuit for allegedly failing to consider poor people's ability to pay bail, as the Constitution requires. She takes over as the county makes use of a prestigious $2 million grant to enact reforms intended to equalize the system for racial minorities, for the mentally ill and for the poor. And she takes over as the nationwide war on drugs continues to recede from prominence.

Ogg has repeatedly promised her supporters, throughout the campaign and during her victory speech, that "it’s a new day of justice in Harris County." It's a romantic notion, sure — but what does that actually look like in practice?

From the Houston Chronicle: Anderson, Ogg debate DA priorities - Anderson, Ogg spar over victim's jailing, evidence scandal

Who will be Harris County's next District Attorney?

- Click here for the article.

Before the fireworks erupted on national television between Clinton and Trump on Monday, Houston saw its own fiery debate between the candidates for Harris County district attorney.

Republican incumbent Devon Anderson and Democratic challenger Kim Ogg pulled no punches in the only debate scheduled for the county's top law enforcement post.

"I think it's apparent for anybody who has been listening to Ms. Ogg that she is clearly not fit to be the Harris County district attorney," Anderson said in closing after a raucous debate in front of more than 300 people. "She can't do half of what she says she's going to do."

In her closing, Ogg reminded voters of the litany of problems that have erupted across the county's criminal justice system.

"We have a justice system that should rely upon evidence, but instead is being run by prosecutors who are led, apparently, by a win-at-all costs philosophy," Ogg said. "I have a vision for a justice system that treats us all the same under the law, that tries to help people, not just convict them."

The two women sparred over the treatment of a mentally ill rape victim who was jailed for several weeks last year by prosecutors under Anderson. They also talked at length about the emerging scandal over the unauthorized destruction of evidence at the Precinct 4 Constable's Office.

From the Houston Chronicle: Precinct 4's evidence destruction scandal part of larger pattern in constables' offices

For 2306, and our coverage of county offices.

- Click here for the article.

With Harris County's Precinct 4 Constable's Office mired in scandal over the improper destruction of 21,000 pieces of evidence, serious evidence cataloging and control problems also have been uncovered in the constables' offices in Precincts 3,6 and 7, according to interviews and audits obtained by the Houston Chronicle.

While there is no proof yet that evidence has been unlawfully destroyed in those other three offices, 2,000 items were initially reported missing in Precinct 3; guns, jewelry, electronics and cash were misplaced in Precinct 6; and Precinct 7's evidence room has been described as "a shambles."

In Precinct 4, where the evidence destruction scandal is still unfolding, prosecutors so far have dismissed 100 criminal cases and are still determining how many convictions could be affected by years of careless work blamed on a corporal fired for illegally disposing of drugs, guns and evidence. The episode remains the subject of a criminal probe.

Only time will tell whether chaotic evidence handling practices reported in Precincts 3,6 and 7 will result in case dismissals, appeals or further investigations.

Harris County auditors in May 2015 uncovered evidence problems - never made public - in a review of the overstuffed property room inside the Precinct  6 Constable's Office in the East End. There, auditors reported finding 28 percent of the evidence missing along with $54,000 in cash in a review of a sample of 799 items, the audit shows. Their visit to the office came only months after the previous constable, Victor Treviño, resigned after pleading guilty to misappropriating money from a charity he ran out of his office.

From the Texas Monthly: A Hard Look at the Harris County District Attorney’s Office

For our look at counties - plus the upcoming election.

- Click here for the article.

The recent revelation that Harris County deputies improperly disposed of evidence from hundreds of criminal cases—forcing the dismissal of ninety drug cases, with more dismissals likely to come—is merely the latest blow to the county’s embattled district attorney, Devon Anderson. Anderson was appointed to the position in 2013 by Governor Rick Perry following the death of her husband, former District Attorney Mike Anderson. Although she won election to the office in her own right in 2014, Anderson faces a strong challenge this fall from lawyer Kim Ogg, whom the Houston Chronicle endorsed this weekend.

Although she’s only been in office three years, Anderson has faced more than her share of issues, including:

- Jailing rape victims
- Holding a man in jail after his conviction was tossed out
- Questionable behavior by prosecutors
- Stoking racial fears

From the Texas Tribune: Charges Dismissed Against Anti-Abortion Activists Who Made Video

Lot's to chew on here.

Activists on the left and the right should celebrate the decisions since it makes it easier for them to shine a spotlight on the inner workings of organizations they think necessary.

But there are concerns that the elected district attorney felt political heat due to the coming election, which led to the decision to drop the charges.

- Click here for the article.

Criminal charges against the anti-abortion activists behind undercover recordings of a Houston Planned Parenthood facility were dismissed Tuesday.

David Daleiden and Sandra Merritt, the videographers who infiltrated Planned Parenthood Gulf Coast, had been charged with tampering with a governmental record, a second-degree felony charge that carries up to 20 years in prison. A court clerk confirmed that the Harris County district attorney's office filed the motion to dismiss the case against Daleiden and Merritt.

Harris County DA Devon Anderson said in a statement that Texas limits what can be investigated after a grand jury term gets extended, which happened in this case.
"In light of this and after careful research and review, this office dismissed the indictments," Anderson said.

Daleiden and Merritt were accused of using fake California driver’s licenses to enter the Planned Parenthood facilities where they recorded staff discussing the costs of providing fetal tissue for research.

The tampering with a governmental record count was the last remaining charge against the activists. A Harris County judge in June tossed a second charge against Daleiden — a misdemeanor charge for offering to sell or buy fetal tissue — because of a technical problem with the indictment filed by prosecutors.

Daleiden’s team had asked a judge to dismiss his indictments, alleging they were a result of improper proceedings by prosecutors and that the grand jury — originally asked to investigate Planned Parenthood, not the videographers — exceeded its authority.

From the Houston Chronicle: Harris County should stop jailing small-time drug offenders

Here's an opinion piece arguing that the Harris County District Attorney should use her discretion to restrict how it implements one of the laws on its books. I offer this since it illustrates a point made in the section on counties in the state. While they are administrative units, the actual administration is done by locally elected officials, which means that it is done in a manner that is in sync with local public opinion - or at least the opinion of people who show up at the polls.

- Click here for it.

While the state of Texas has not yet reformed its drug laws, many local jurisdictions, frustrated with the lack of results from locking up citizens for nonviolent drug offenses, have begun to exercise discretion in their enforcement of drug laws. In the interest of saving valuable taxpayer dollars and conserving scarce law enforcement resources, these jurisdictions have sought out alternatives to jail that allow them to hold drug users accountable without saddling these individuals, many of them young, with a criminal record.

Increase the initiative now

Harris County is one of these places. Faced with an overcrowded jail and a criminal justice budget that will account for more than 75 percent of the county's total general revenue budget in the next fiscal year, Harris County District Attorney Devon Anderson instituted the First Chance Intervention Program in October of last year. The program allows those arrested for possession of small amounts of marijuana with no criminal record to avoid starting one through cognitive classes or community service. However, because the program targets first-time offenders only, its reach is limited. We argue that the full potential for economic and social improvements cannot be realized with the program in its current form.

The initiative has been effective so far. From its rollout through August 2015, more than 1,800 individuals enrolled in the program, with 85 percent of those enrolled completing the program or still actively participating. The program is reaching a diverse audience, with blacks and Hispanics making up over two-thirds of the program's enrollment - a positive sign since arrest numbers show that blacks and Hispanics are overrepresented for all marijuana arrests relative to their populations. Further, the median age of program participants is 20 years, indicating that the program is furnishing opportunities for young people to avoid a lifetime of consequences that come with a drug conviction. So far the evidence shows that the county's initiative is a promising avenue for reducing the collateral costs that accompany a criminal record and the race and age disparities in drug arrests, all while saving taxpayer money.

Won't endanger public

The success of this pilot program should encourage Harris County to expand eligibility to all marijuana offenders, regardless of past drug arrests, as well as to offenders facing felony charges for possession of less than a gram, or a sugar packet's worth, of other controlled substances. The problems associated with misdemeanor marijuana arrests - high costs, racial disparities and collateral consequences - are only exacerbated in the case of felony drug arrests.

From the Atlantic: Most States Elect No Black Prosecutors

This article bridges 2305 and 2306. Related topics:

GOVT 2305: Civil Rights and the Equal Protection Clause, and Interest Groups
GOVT 2306: Local Government, Criminal Justice Policy, and Local Elections

The author argues that because most states elect their district attorneys - elections that in Texas are carried out at the county level - and because Whites are a majority in each state, as well as most counties, district attorneys are primarily White. This has consequences for the decisions that the criminal justice system makes regarding who gets prosecuted and who does not.

From the article:

Here are a few of the numbers, according to a report on elected prosecutors commissioned by the Women Donors Network and conducted by the Center for Technology and Civic Life, a nonpartisan group that grew out of the progressive National Organizing Institute:

- 95 percent of elected prosecutors are white;- 79 percent are white men;- three in five states have no black elected prosecutors;- 14 states have no elected prosecutors of color at all*;- just 1 percent of elected prosecutors are minority women.

This has consequences for who goes to trial and who does not:

In the U.S. legal system prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.

Why does this matter?

This ought to be worrying in a democracy: Although trying to assemble a government that perfectly represents each minority population may be a recipe for disaster—ask Lebanon!—the magnitude of the disparity here should startle even jaded observers. At the federal, state, and local levels, African Americans, Hispanics, and Asians hold elective office at rates lower than their percentages of the overall population, but even so, the gap among prosecutors is particularly large. There’s also little question that the U.S. justice system as it exists perpetuates and encourages huge racial gaps, leading to much higher incarceration rates for black men and serious social disparities in housing, education, employment, and beyond.

Which raises an important question regarding majoritarian democracy: If elected institutions do not have the same ethnic breakdown as the general population - if the majority is over represented - are the rights of minority populations in jeopardy? The author suggests that the answer is yes. This is central to the argument that the United States' governing system is systematically racist, that is, biased in favor of the majority due to winner take all electoral rules. Obviously this is an area of controversy. People are divided on the issue based on ideology. Liberals are more likely to see systemic racism at work, conservatives less likely.

Some important terms in the article:

These are related to the position of district attorney:

- Wikipedia: District Attorney.
- Wikipedia: Prosecutor.
- Texas Association of Counties: District and County Attorney.
- Texas District & County Attorneys Association.
- Harris County: Office of the District Attorney.

These are relate to the concept of systemic racism:

- Wikipedia: Institutional Racism.
- The Atlantic: Systemic Racism or Isolated Abuses? Americans Disagree.
- The Daily Beast: Supreme Court: Institutional Racism Is Real.

Random items related to the Texas Legislature

All from the Texas Tribune:

- Long Legislative Road for Voucher Bills Begins.

A preview of the looming battle over school vouchers played out Thursday as a state Senate panel considered two proposals to provide state financial support to parents who want to send their children to private schools.

Debate focused on how to ensure taxpayer funds are well spent at participating private schools as lawmakers traded questions over whether such plans would improve education in the state.

- District Attorneys' Report: Misconduct Exceedingly Rare.

In a report issued Monday morning, an association representing Texas prosecutors disputed what they say are illegitimate claims of rampant prosecutorial misconduct without accountability.

“It’s just not true,” said Rob Kepple, executive director of the Texas District and County Attorneys Association.

The association spent months reviewing 91 Texas cases in which the Northern California Innocence Project in a Marchreport identified prosecutor error or misconduct. The TDCAA said it discovered only six instances “in which a prosecutor arguably engaged in deliberately dishonest or fraudulent conduct that produced unjust results.”

Kepple said the Innocence Project report was “replete with errors” and called it “really kind of embarrassing from a scholarly aspect.”

Cookie Ridolfi, founder of the Northern California Innocence Project, who researched the Texas misconduct data, said she stood by the organization’s findings.

- Ethics Bills Draw Ire of Conservative Activists' Lawyers.

Lawyers for some of the state's most influential conservative groups voiced bitter opposition late Wednesday to several proposals to reform Texas' campaign finance laws, arguing the bills would only make a broken system worse and trample First Amendment rights.

Anticipating the backlash, state Rep. Sarah Davis nodded to the tough crowd after presenting her House Bill 22, which would overhaul the Texas Ethics Commission, particularly to beef up its enforcement authority.

"I love agreed-to bills, but I have a feeling there is absolutely no change that comes before this committee that contains the words 'Texas Ethics Commission' that Empower Texans would not just immediately oppose," the West University Place Republican said, referring to the conservative group that has come under scrutiny by state campaign finance regulators. "But I'm happy to work with them."

The late-night meeting of the House State Affairs Committee offered the latest snapshot of the intense, organized scrutiny some lawmakers face as they put a renewed focus on ethics reform. Gov. Greg Abbott elevated the issue last month by naming it one of five emergency items, and some of the ideas before the panel Wednesday were similar to what he has called for.

- Senate Passes Patrick's Tax Cut Package.

The Texas Senate on Wednesday approved Lt. Gov. Dan Patrick’s multibillion-dollar tax relief package to cut property and business margins taxes, tossing the ball into the House's court.

"Rather than spend excess revenue, the Senate has voted to return $4.6 billion to Texas homeowners and businesses over the next two years," Patrick said in a statement.

The biggest piece of that package, Senate Bill 1, authored by Senate Finance Chairwoman Jane Nelson, R-Flower Mound, passed the Senate 26 to 5. The bill devotes about $2.4 billion to increase homestead exemptions from school property taxes.

- Senate's Property Tax Cut May Stall in House.

While the Texas Senate easily approved a $2.4 billion plan to provide property tax relief to homeowners Wednesday, the measure may lose momentum when it reaches the House, where leaders appear more interested in cutting the sales tax.

“We’re going to present our plan here soon, and you’ll see what we’ll be driving for,” House Ways and Means Committee Chairman Dennis Bonnen, R-Angleton, said. “I think it’s fair to say at this time that we’re focusing on taxes that will have a more meaningful impact on growing the Texas economy, and property tax cuts are not part of the plan.”
Bonnen said he will publicly present his full proposal for tax cuts early next week.

Earlier this month, he filed three tax cut bills, two similar to Senate proposals to cut the margins tax paid by businesses, and a third that would cut the state sales tax.

From the Houston Chronicle: Harris County DA calls for grand jury reform - Prosecutor urges end to judges' 'pick a pal' way of selection

Here's the full text of a story linked to below

This is important for both 2305 and 2306. The right to a grand jury is a chief component of the due process established in the bills of rights on the national and state levels, but there is little clarity in what makes a grand jury fair. The Harris County DA seems to know what it isn't:

Harris County District Attorney Devon Anderson on Sunday called for lawmakers to abolish the way judges pick grand juries, citing a growing lack of confidence in the system, which critics have said does not adequately represent a diverse population.
Texas judges tasked with empaneling 12-person grand juries - who decide whether enough evidence exists to formally charge a suspect with a crime - often have named their friends as grand jury commissioners who then pick their friends to fill the remaining spots, leading to panels of people who are socioeconomically and demographically similar.

Anderson, who has led the state's largest district attorney's office for the past 17 months, had remained neutral on calls from critics of the "pick-a-pal" system.

In a two-page Letter to the Editor of the Houston Chronicle on Sunday, she offered her full-throated support for changing the law on how grand juries are selected.

"The public is losing confidence in the grand jury system," Anderson wrote. "I support the efforts in the Texas Legislature to abolish the jury commissioner system."

Anderson, who called the current system "a historical anachronism," joins a chorus of calls for reform in the midst of fierce national debate over the diversity of the people picked to be grand jurors, an issue that has been spotlighted by several high-profile cases across the country.

In November, riots broke out in Ferguson, Mo., after a grand jury decided not to indict a white police officer in the shooting of an unarmed black teenager. A month later, protesters took to the streets in New York City when a grand jury decided not enough evidence existed to go forward with charges against a white police officer whose chokehold, which was captured on video, led to the death of an unarmed black man.

A Houston Chronicle analysis in 2013 showed that Houston police officers shot 121 civilians - 25 percent of them unarmed - between 2008 and 2012 without a single officer being indicted.

Whitmire's bill

State Sen. John Whitmire, who authored the bill to abolish the "key man" system, said recent events and local reporting reinforced his concern about how grand juries are put together and convinced him it is time for a change.

"People of all colors have lost confidence in the system," he said. "We don't need a handpicked group of the judge's friends making these decisions."

Whitmire said he attended a town hall meeting where it was apparent that minority communities in Houston have lost faith in the current system.

"I've become convinced from personal observation and knowing people - judges, prosecutors - that it's a flawed system," he said. "It's alarming when you hear the examples of what some judges are doing."

Whitmire applauded Anderson's decision to support the effort to create more diverse grand juries. He said he looked forward to partnering with her administration.

"She's the district attorney of the largest DA's office in Texas. I'm the Chair of the Senate Criminal Justice Committee," he said. "I'm a Democrat, she's a Republican, so I'm sure we'll be able to get some things done."

The problem, according to people who are reticent to make changes, is the enormous time commitment individual grand jurors have to make.

Houston's 22 felony judges are tasked with empaneling grand juries who serve two days a week for three months.

Each grand jury hears hundreds of cases and decides whether enough evidence exists to formally charge a suspect with a crime. More than 40,000 felony charges are filed in Houston every year. If enough evidence exists, the grand jury votes to hand down an indictment. If not, the grand jurors "no-bill" the suspect.

Throughout Texas, most judges use the key man system in which a judge chooses up to five commissioners, sometimes friends or past grand jurors, who then pick the other 11 grand jurors.

State District Judge Susan Brown, who is the current administrative judge in Harris County, said picking grand juries is the most difficult part of a judge's job because of the time commitment.

When she last chose a grand jury, Brown brought 30 people from the jury room to her court and explained that a commissioner makes a time commitment and is responsible for bringing in names of more prospective grand jurors. She had five volunteers. Of those, only four showed up again and only one brought in the name of another prospective grand juror.

"The reality for us is that it's really hard," she said. "I'm an advocate for whatever way gets a cross-section of the community," she said.

Judges often have relied on their friends, acquaintances and recommendations from colleagues when selecting commissioners, leading to accusations of a "good old boy system" of grand jurors.

Critics have long said judges should take their friends out of the process and instead use a random jury "wheel" to bring in prospective jurors to ensure diverse grand juries.

Several judges have said it is not as easy as it sounds.

"There's a lot of people on the wheel who probably mean well and say they'll do it, but I don't know that they will," said state District Judge Ruben Guerrero. He said he prefers to personally screen prospective grand jurors and select retired people who have the time to serve. He noted that his grand juries generally have "a good cross section of African Americans and Hispanics."

A Houston Chronicle analysis in December showed there are three times more adult Hispanics living in Harris County than the number who serve on grand juries.

Jury commissioners

A former state district judge herself, Anderson has said that she would use a random jury pool if she were still on the bench.

On Sunday, she called for an end to the current system.

"The use of jury commissioners to select grand jurors unnecessarily gives critics of the grand jury system ammunition to challenge the jurors' independence and integrity," she wrote.

She noted that other jurisdictions have used random jury wheels for years. The federal court system abolished the key man system in 1968.

"Whatever concerns the remaining district court judges have about using jury pools for selecting grand jurors should have been assuaged long ago," she wrote. "Other district courts have been using the jury pool system successfully for long enough that its viability cannot be questioned."

Anderson was appointed in September 2012 after her husband - then the district attorney - died a month earlier. She was elected in November after a bitterly fought campaign, during which she said that she does not have the authority to force any of the 22 state district judges, who are elected, to change their process.

"Getting those 22 people to agree on anything is like herding cats," she said in September.

Indeed, an informal survey of the current judges reveals most use a "hybrid" system of their own device, like personally approaching prospective jurors randomly, then asking their commissioner to consider putting them on the grand jury.

Other judges find people who are interested in being grand jurors and then conduct in-depth interviews and background checks.

If Whitmire's bill passes, it would give the judges and their staffs a standardized way to empanel grand juries with a random jury wheel.

More diversity

Carmen Roe, president of the Harris County Criminal Lawyers Association, said abolishing the commissioner system is a good first step.

"There's no question that everyone in Harris County realizes that the key man system does not result in a diverse grand jury," Roe said.

In addition to abolishing "pick a pal," Roe said the law needs to mandate that jurors are selected from a random panel without judges intervening.

"We have to go one step further and make sure that the first 12 qualified grand jurors are seated," Roe said. "Not the 12 people that the trial judge or someone else thinks should be seated."

The Chronicle provides the following links to related stories:

· Anderson: Let's rethink how grand juries are selected· Judge denies Perry request for grand jury witnesses· Falkenberg: Another Jasper case, another pick-a-pal grand jury

What is the Public Integrity Unit?

It's the unit at the heart of the dispute which led to the indictment of the governor.

Here's a description from the Texas Tribune:

The Public Integrity Unit is a state-funded division of the Travis County District Attorney's Office. It investigates public corruption, insurance fraud, and motor fuels tax fraud.

The Travis County DA holds the chief responsibility for enforcing the government and election code statewide. The unit was created under the leadership of Ronnie Earle, who served as the Travis County DA for three decades until his retirement in 2008. Earle captured national attention with his investigations into U.S. Sen. Kay Bailey Hutchison and former U.S. Rep. Tom DeLay, R-Sugar Land, and became the poster child for what Republicans view as the unit’s politically motivated prosecutions. He told the Texas Tribune that he started the unit in the early ‘80s because “it made no sense to me to see an aggravated robbery case next to a case about a state employee cheating on travel vouchers.” At the time, Earle says the investigation of government crimes was “mostly left to the newspapers” because the Travis County DA spent most of its time fighting street crime.

Dismantling the unit is a perennial platform plank of the Texas Republican Party, and numerous members of the GOP, included DeLay and Hutchison, have criticized what they view as its politically motivated prosecutions. According to Earle, between 1978 and when he retired, in 2008, he prosecuted 19 elected officials, just five of whom were Republicans. Cathie Adams, the former Republican Party of Texas chair, filed an equal protection lawsuit over the issue in federal court last year. Her argument: Why should the voters of Travis County get to elect an official who has the power to prosecute offenses statewide? A frequently proposed solution — and one that state Sen. Dan Patrick, R-Houston, put forth unsuccessfully during the last legislative session — would be to put state corruption probes under the statewide-elected Attorney General.

Click here for stories related to it.

Making sense of the indictment of the governor

As you have probably heard our governor was indicted on August 15th on charges of "abuse of official capacity" and "coercion of a public servant." The charges were filed in Travis County - where you'll find Austin, the state capital - and the uproar since then was pretty predictable.

Since we will be spending time discussing and following the case, it's not a bad idea to lay out the facts associated with the case - it's background and all that - so we can make sense of all it entails.

Here are few links to stories that should get you up to speed, expect more. This story should have legs.

- From the Austin American Statesman: An Interactive Timeline. This might be the best resource available, especially if you are completely new to this. It starts with the events that led to this particular dispute, though it lacks general context.

- Also from the AAS: Rick Perry indicted for Lehmberg veto threat. Thsi walks through the day of the indictment.

- From the Texas Tribune: Five Things to Know About the Perry Indictment. Among the points made: It will be hard to dismiss as purely partisan, but the prosecution wont be easy.

- The Texas Tribune has links to all its stories related to the indictment here.

- From the Texas Observer: Everything You Need to Know* About Rick Perry’s Newest Scandal (*But were afraid to ask). Another overview of the issues in the case, including commentary on the broader issues associated with it, such as the fact that the Travis County's District Attorneys was investigating possible corruption in awarding contracts to the Concern Prevention and Research Institute of Texas. Critics of the governor argue that he had overseen the awarding of contract to political supporters, which is illegal. Getting rid of the DA would have allowed him to appoint a - presumably friendly - replacement.

From the Death Penalty Information Center: The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases At Enormous Costs to All

Some of this we already knew, but according to this report a small number of counties are responsible for most of the death penalty cases in the United States.

Harris County makes the list, but the report raises questions about the fairness of the system and whether the HPD crime lab has produced tainted evidence for prosecutors. Some people convicted of murder have since been exonerated.

Story probably helps illustrate how the political culture in the local area differs from that elsewhere and nationally.

The Huffington Post reviews the report:

The county that's home to Houston is also the most execution-friendly county in America. Under former District Attorney Johnny B. Holmes and his infamous handlebar mustache, Harris County by itself sent more people to death row (more than 200) than all 49 states other than Texas. When reform-minded District Attorney Pat Lykos (a pro-death penalty Republican, by the way) took over in 2008, she set out to look for innocent people convicted under the lock-'em-up-and-throw-away-the-key approach of her predecessors. Since 2008, there have been 11 exonerations Harris County.

The county has also been beset by scandals at its crime lab. In 2002, an investigation "found cases in which lab results appeared to have been changed to bolster police testimony in criminal cases." As Houston defense attorney John T. Floyd explains, five years later ...

On June 13, 2007, former U.S. Justice Department Inspector Michael Bromwich issued a 400-page report that concluded the crime lab’s DNA and serology departments had made hundreds of “serious and pervasive” mistakes in homicide and sexual assault cases. Bromwich two-year investigation examined more than 3500 cases processed by the crime lab over the previous quarter century. 135 of those were DNA cases handled by the crime lab between 1992 and 2002, Bromwich’s investigators found “major issues” in 43 of those cases, and, even more disturbing, found “major issues” in 4 of the 18 death penalty cases it examined . . .

For more than two decades forensic analysts with the lab appear to have deliberately presented false or misleading testimony designed to satisfy the District Attorney’s Office need for a conviction. And when the analysts were not giving false testimony, they were neglecting to conduct tests that would have either exonerated the accused or cast doubt on the test findings the prosecution needed for conviction.

As late as April 2013, Harris County was investigating how a crime lab technician remained on the job for years, helping to win convictions in thousands of cases, despite "a high error rate," and "a dubious understanding of the chemistry involved in the job."

Lykos was defeated last year in her bid for reelection, in part because of her efforts to divert first-time DWI offenders, and a policy of not pressing felony charges for "trace" amounts of drugs. Former state judge Mike Anderson beat Lykos in the Republican primary with a promise to return to "the good old days," by which he presumably meant Holmes and his death penalty machine.

In a training session for his assistant district attorneys, conducted earlier this year, Anderson was captured on video giving tribute to Holmes. At one point, he celebrated how Holmes didn't press criminal charges against the Houston police officers who shot and killed Pedro Navaro in 1998. Navarro was unarmed. The police shot the 22-year-old man 21 times during a botched drug raid -- nine times in the back.

Anderson then referred to the Innocence Project -- a group that works to get innocent people out of prison and off death row -- as the "enemy" of prosecutors. He also went on to praise prosecutors who fought against DNA testing in innocence cases. Harris County was already known among prosecutors for negotiating the destruction of DNA evidence into plea bargains, meaning that innocent suspects coerced into false confessions couldn't later ask for the tests that could clear their names. The Houston Chronicle editorialized that the video confirmed critics' "worst fears" about returning to the conviction culture that we now know produced so many exonerations.

Anderson passed away in October. His widow Devon was appointed to replace him, and now serves as the Harris County DA.

From The Texas Tribune: Judge Ken Anderson Resigns Amid Ethics Lawsuit

This picks up a story we highlighted in the spring.

The state district judge was found to have withheld evidence in a murder case while he was a prosecutor in 1986. He is now facing civil and criminal proceedings, but has already been accused by the State Bar's Commission for Lawyer Discipline of violating several of its rules of disciplinary conduct.

Perry uses line item veto authority to cut funding for the Texas Public Integrity Unit

The Governor has been threatening to do so unless the Travis District Attorney - who had been arrested for DWI earlier this year - resigned. She didn't, so he did. This means the unit - which is responsible for investigating fraud and corrpution in state government - will lose $7.5 million. It doesn't shut it down, but it compromises its ability to carry out its mission.


The Texas Tribune decribes the impact of the cut here.
Click here for the governor's message on all line item vetoes. This is the part that relates to the Public Integrity Unit. 

Article IV - The Judiciary

Judiciary Section, Comptroller's Department
D.1.4 Strategy: PUBLIC INTEGRITY UNIT, $3,742,829 $3,830,597
TRAVIS CO & UB

Public Integrity Unit, 53rd Judicial District.

Despite the otherwise good work the Public Integrity Unit's employees, I cannot in good conscience support continued State funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public's confidence. This unit is in no other way held accountable to state taxpayers, except through the State budgetary process. I therefore object to and disapprove of this appropriation.

Click here for information about the Public Integrity Unit from the Texas Tribune.

And here for a list of stories related to the unit from the same source.
The Texas Republican Party has sought to eliminate the unit for many years. It highlights the political conflict that exists between the liberal leaning elected officials of Austin and Travis County and the more conservative officials elected state-wide. The unit had investigated Tom Delay among other prominent officials. The current DA's arrest may have simply given the governor cover for accomplishing a goal he has sought for some time. If she resigns, he gets to appoint a replacement - which woudl certainly be a Republican less anxious to investigate the governor.

Here's a story about a past attempt to get rid of the unit in 2011, and to remove the authority to investigate fraud from the Travis County DA's office to the Attorney General's office.

Texans for Public Justice have filed a complaint about the governor's veto, but the complaint was filed with the Public Integrity Unit, which creates some obvious problems. They argue that the governor's actions overstepped his authority.

Texas District Attorneys Feeling the Heat

Texas Tribune argues that people in this once exalted position are under fire:

District attorneys were often big personalities — the courtroom muscle of the criminal justice system, the people showing up on TV to play out the real-life version of “truth, justice and the American way.” Candidates for Texas attorney general — an office with almost no duties in criminal law — have tried to capture the crime-busting aura of prosecutors for years. It was strong stuff in a political arena. 

Running a political campaign against a sitting prosecutor in Texas was a job for egotistic dunces and legal-minded Quixotes. Even weak DA’s were invincible.But a strange thing is happening in the impervious ranks of high-profile Texas prosecutors. That cachet is taking a beating. 

One prosecutor is in jail. A former district attorney is facing charges related to sending an innocent man to jail. One county spent nearly $400,000 settling a sexual harassment charge against its DA. Another prosecutor is fighting contempt of court charges after refusing to testify in a prosecutorial misconduct inquiry. 

Texas Forensic Science Commission finds that the Department of Public Safety crime lab fabricated evidence against drug offenders. The Court of Criminal Appeals is expected to reverse the convictions.

The story is in myhighplains.com, among other places.

Since the criminal justice system in the state is decentralized, each affected county is responding to this in different ways:

Each district attorney may handle the situation as he or she chooses. Fort Bend County District Attorney John Healy told the Houston Chronicle that he was waiting for retesting of cases by DPS before alerting defendants and their lawyers.

Jack Roady, the district attorney in Galveston County, said he looked at each case and dismissed every one in which evidence had been destroyed or possibly "tainted by Salvador's involvement." Of the 700 convictions in this category, he said he focused on the 26 cases in which the defendant was still in prison.

In Harris County, Sara Kinney, a spokeswoman for the district attorney, said all pending cases connected to Salvador's work were dismissed. "Now we will just review, case by case, any writ we get as a result of that problem," she said.

Bob Wicoff, who heads the appellate division of the Harris County Public Defender's Office, said that his staff is beginning to file appeals, "armed with the Galveston cases," for some of the more than 400 Harris County cases that involved Salvador's work. He said that just four Houston defendants whose cases were handled by Salvador remain in prison; Harris County was less affected because it relies on a range of labs, not just the one where Salvador worked.

The story provides a link to the appelate court's ruling on a case involving a man sentenced to serve 32 years on a fabricated charge.

While the tests were the result of one employee, the report from the forensic commission finds that the DPS had a culture that tolerated such work, so the blame is being spread around.

The DPS employee responsible for the misconduct, Jonathan Salvador, has been the subject of an investigation by the Texas Forensic Science Commission. At the commission's last meeting in January, Nizam Peerwani, a member of the committee and the chief medical examiner for Tarrant County, said that Salvador was part of an office culture that "tolerated under-performance." Commissioner Sarah Kerrigan said that after multiple interviews with Salvador's colleagues, the commission concluded that his work was "marginal" and of "low quality."

Salvador, who could not be reached for comment, was suspended from his duties as a forensic scientist with DPS in February 2012, when the department discovered problems with his work, including the falsification of results in numerous cases involving marijuana, cocaine, heroine, pharmaceuticals and other controlled substances. Salvador had worked on 4,900 drug cases in 30 counties since he took the job in 2006, DPS spokesman Tom Vinger said.

After an internal investigation by DPS and the Texas Rangers, Salvador was brought before a Harris County grand jury in May 2012, which chose not to indict him. In August, he resigned from DPS.

"The department implemented more stringent quality control measures to help prevent similar issues in the future," Vinger said, adding that the department continues "to provide assistance in cases worked by this former employee, including re-examining evidence when requested."

DPS Laboratory Manager Keith Gibson also sent a letter to district attorneys around the state with a list of nearly 5,000 convictions that could've been affected by Salvador's work.

Prosecutor Accountabilty Bill passes Senate unanimously

The Bill is SB 825 and was introduced by John Whitmire. It is one of many such bills introduced this session following the Michael Morton case we discussed earlier this semester.

From the Texas Tribune:

It would extend the statute of limitations for offenses involving the suppression of evidence by prosecutors. Under current law, the four-year statute of limitations begins on these offenses when they occur, but Whitmire's proposal would begin the four years when a wrongfully convicted defendant is released from prison. It would also require the State Bar of Texas to issue a public reprimand for prosecutors who suppress evidence that they should have given to defense attorneys.

A public reprimand hardly seems sufficient. The bill now proceeds to the House.

Other bills aimed at decreasing wrongful convictions being considered by lawmakers include SB 1611, by state Sen. Rodney Ellis, D-Houston, and HB 1426, by state Rep. Joe Moody, D-El Paso, both of which would codify the requirement that prosecutors share certain information with defense attorneys before a trial begins that could bolster a defendant's claims of innocence. Both bills are set to be discussed Tuesday by legislative committees.