jail

Mass Pleas of Guilty

April 29, 2017 Leave a Comment

RF1

(Reprinted from The Defender, Winter 2006)

$300 million is a lot of money. So maybe, just maybe, we ought to think about this expenditure.

First of all, why do we need to lock up more people? Are we about to have a sudden crime wave? No. Maybe this need for more jail space is necessitated by the need to keep up the local trend of misusing the jail space we already have. What do I mean by that?

There are two kinds of people in jail: Those that belong there and those that don’t. I would argue that many of the 9,000 people currently in jail do not need to be there. Restated, the taxpayers are paying to house a lot of people the taxpayers should not be paying to house.

Who is in jail? People who are charged and not convicted and people who have been convicted who are serving a sentence.

There are far too many people in jail who arc charged and not convicted. behind-bars

There are far too many presumably innocent people in jail with cases pending. If you really want to free up some jail space give these people bond. Bond is not supposed to be used as a form of punishment, but it is. Far too often people arc stuck in jail because they simply cannot afford bond. If you don’t believe me, go to any of our fifteen county courts or our twenty-two district courts on a Monday morning and start counting heads of those who didn’t make bond.

Why are these people still in jail on Monday, when anybody with any sense and money would have bonded out? The answer is simple: They are still in jail because they are too poor to make bond.

If you cannot afford to make a $500 misdemeanor bond by definition you are poor. So we keep presumably innocent people in jail in this county because they arc poor. This is wrong. Supposedly we got rid of debtors’ prison a long time ago. Truth is, we still have it.

Since poor folks cannot afford to make misdemeanor bonds or state jail bonds, they arc cluttering up the jails. Why then aren’t they getting PR Bonds or Pre-trial Release Bonds? Can anybody answer that? I haven’t heard a good answer yet, and they are not all homeless.

Let me suggest a two-part answer: First, the judges, while well-intentioned, are still elected by voters who don’t know who they are. The judges worry about the “nightmare case” where they give a guy a Pre-trial Release Bond and he goes out and kills someone. So what do the judges do? They don’t grant Pre-trial Release Bonds. It’s safer for the judge to leave the presumably innocent person in jail then to release him on Pretrial Release Bond. While it may be politically safer for the judge, it is far more dangerous to the fundamental tenets of our system for the judge to keep the presumably innocent locked up for political reasons.

What is the second reason judges don’t grant Pre-trial Release Bonds? Well, the Pre-trial Release folks are simply overworked. A long time ago Pre-trial Release was created, at least in part, to provide an avenue to allow judges to release presumably innocent indigents on bond. I remember it actually happening at the old courthouse. Now, though, the same Pretrial service people are bogged down with their new job: Supervising bond conditions for those people lucky enough to actually make bond. If you don’t believe me, just go to the twelfth floor and watch.

As the years have worn on, the judges for a number of reasons have added more and more conditions to even the most mundane bonds. It has gotten to the point that bond conditions in some courts virtually mirror conditions of probation. Walk into any court and listen as bond conditions are set and you will swear the person has just pled guilty and is being sentenced. Nope. He is just getting bond conditions set. Once those conditions are set someone has to supervise them. Guess who? You got it, the good folks in Pre-trial Services.

So why are our jails overcrowded with presumably innocent folks?
Because, the courts refuse to utilize Pre-trial Services for its proper purpose.

What is the net effect? Defendants who are presumably innocent remain in custody. What happens to all these poor people who are denied Pretrial Release Bond? How is all this resolved for them?

The answer is simple and revolting to any sense of justice: Mass pleas of guilty.

Everyone reading this knows what I am talking about. Every Monday morning the lawyer for the day appears. He is assigned to represent 6-8 people. He goes back, says “Hi” to all his spanking new clients and then the District Attorney’s office extends offers. If “Joe” pleads guilty he gets thirty days, or if he wants to go to trial he can tee it up in sixty to ninety days. “Joe” takes the thirty. The system is set up to keep poor people in jail and to encourage pleas of guilty. If you have a choice of pleading guilty and getting out in ten days or pleading not guilty and maybe getting out in ninety days which choice would YOU take?

People who are presumably innocent are kept in jail and they plead guilty and they fill up our jails. It’s been our system far too long. A lot of people will probably not like my criticism of the system. Undoubtedly, I am painting with a broad stroke. But it is all true.

We don’t need to spend $300 million to build more jails; we need to let people out on Pre-trial Release Bonds and our jail problem will be solved. While we are at it, the courts need to stop illegally revoking bonds. When clients show up without an attorney that is no basis to revoke bond. Having an attorney is a right, not an obligation of bond.

In the meantime we can use that $300 million to support education and employment opportunities in the inner city. We can use that money to pay for drug rehabilitation and to support drug court. We have enough people in jail in Harris County.

Let’s take a hard look at our system and institute some long overdue changes. The solutions are as evident as the problems. All we need is the willingness to be honest with ourselves and the desire to do better.

So the School Principal has Interrogated Your Child…

May 3, 2016 4 Comments

The wisdom of my friend and colleague, Larry McDougal, bears repeating:

A school principal is undisputedly an agent of the State of Texas. Yet the rules that apply to police officers interrogating your child do not apply to school principals. Even if the police officer detains your child and takes them to the principal, as long as the police officer leaves the room prior to the interrogation by the school principal, the rights granted to any person when interrogated by the police do not apply. In the Matter of V.P., 55 S.W.3d 25. This includes the right to an attorney and the right to remain silent. So even though the principal is an agent of the State, they are not law enforcement and the questioning by a school principal is not a custodial interrogation as it would have been had a police officer conducted the questioning of your child.

So now school administrators and police officers are trained to have the principal take all statements or confessions from the child to avoid the constitutional protections afforded all persons when questioned by law enforcement. They will question your child, without notice to you, and anything your child says can be used against them in court. It is a sad day when our schools and law enforcement work together with the intent to deny our children their rights provided to them by both the U.S. and Texas Constitutions along with the Texas Family Code.

No one wants to teach his or her children to lie. Yet parents are forced with the reality of teaching their children not to cooperate with school administrators and law enforcement.

Your children, once they reach the age of 10 in Texas, must know to never admit to anything that they may have done. They must learn to stand up to authority by demanding that their parents be present, that they want an attorney, and they want to remain silent. Children must learn to hold their ground despite being threatened by the principal (or even a teacher or counselor). It is the American school system that has forced parents into this position.

It was not this way 30 years ago. It does not take much to get a young child to admit to something that they did not do.

Overall, this is one of the saddest consequences of our “tough on crime” mentality. Recalling the practices of the past decades, I remember prosecutors teaching law enforcement to “request” interviews and “release” the child after the interview – even if he intended to arrest. The “release” was to show that the child was not “in custody” and therefore the special protections requiring a trip to a magistrate before a statement could be made would not be triggered. Now, we have gone even further to suggest that the school administrators should do the questioning so as not to trigger the constitutional protections afforded to all.

Of even greater concern is that teachers and school administrators are now being offered and taught the infamous Reid technique: a police interrogation technique focused on breaking down the subject and extracting a confession.

Yes, you heard that correctly. Teachers and school administrators are now being taught to extract confessions under a technique that has been charactered by psychologists and judges as coercive and liable to produce false confessions – especially when used on juveniles who are highly suggestible and more easily manipulated.

The Reid Technique taught in schools is composed of three steps:

an investigative component, in which you gather evidence;
a behavioral analysis, in which you interview a suspect to determine whether he or she is lying; and
a nine-step interrogation, a nonviolent but psychologically rigorous process that is designed, according to Reid’s workbook, “to obtain an admission of guilt.”

Even though taught to educators and administrators, outside a law enforcement arena, the video segments to demonstrate behaviors and questioning involved serious crimes such as murder and rape. The materials given to educators refer to suspects or subjects – never students or kids.

Not surprisingly, one of the first things administrators will do is take away the student’s cell phone to prevent calls or texts to parents. Teaching educators to “dabble” in law enforcement is just as dangerous as teaching them to “dabble” in psychology or other sciences. When they get it wrong (not “if” but “when”), we will have false confessions taking children down the prison pipeline with little hope of stopping.

And, why? We already have entire law enforcement agencies created and ran by our school districts. Officers are already on campus or very near campus to respond. Seems one or the other simply isn’t necessary. Ah, but then again, if we relied on our law enforcement officers, we would have to respect the child’s constitutional and statutory rights. And, don’t even get me started on the whole “alternative school” mess…

parole board’s clemency work should be transparent

August 7, 2015 Leave a Comment

Op-Ed as published in the Houston Chronicle:

Requiring appellate boards to give a written opinion why an applicant’s request was denied a good start
By P. F. McCann Published 4:07 pm, Wednesday, June 17, 2015

The Legislature is done for another 18 months. That means, to paraphrase one 18th-century wit, that for a time, our lives, liberty and property are safe. However, the end of their session is not the end of the fight for fair treatment and open government in the process of pardons and commutations.

Pardons and commutations are an old executive privilege, one that originated as an act of grace from the kings of old. We tossed out kings a long time ago here in Texas, but we kept one of the more moral features of that old system – the right of our elected leadership to dole out mercy. We love our jury trials here, but they often get it wrong, sadly.

That is why we have appellate courts. It is also why we kept the right of leaders to grant reprieve.

Often, one sees that mercy displayed (well, truly, more often it is not displayed) when a person comes up for execution in Texas. At that time, the Board of Pardons and Paroles, in the Executive Clemency section, will vote for or against a recommendation for commuting (an old word meaning, “to change”) a sentence from death to one of life in prison.

The governor can only grant such a request if the board returns a favorable vote, and those are few and far between. I know because my colleagues and I obtained one such recommendation for a condemned man once in 2009. Gov. Rick Perry chose not to grant that request, though he had granted a tiny handful over his years in office. I mention this so that the reader knows I am familiar with the process first-hand, not as an academic study.

His record, and frankly, the board’s, was even more abysmal in terms of granting pardons or commutations on noncapital cases. Every year of his term in office, Perry and the board (all members were appointed by Perry) received hundreds of applications from nonviolent offenders who had served out their time and reformed, or who had been sentenced for heavy terms of years for minor crimes.

Each year, the board routinely rejected the majority of applications for minor technical reasons having nothing to do with the merits, then voted to recommend a small handful of applications, the majority of which the governor then denied.

In 2013, for example, the board received 632 applications for commutations, pardons and restorations of civil rights. The board only voted on one application for commutation out of 106. It recommended denial. Out of 17 applications for pardons based on actual innocence, it recommended zero. Out of 20 applications for conditional pardons it recommended, you guessed it, zero. Out of 300 applications for general pardons, only 44 received a vote from the board recommending relief.

The rest were sent back for reasons unknown, often called “technical compliance.” A total of 46 applications actually got the rare privilege of a recommendation from the board. Of those, Perry granted 12. Twelve. So, about 2 percent of applicants get relief, based on an executive’s whims.

I say whim because the process has always been a complete mystery to all the folks who apply, regardless of whether they have a lawyer’s help. There are no written opinions issued by the board, or public meetings where the debates among the parole board can be heard.

The governor rarely expresses his opinions or reasons for denial except for an occasional good moment of political theater on an execution date. The rules are opaque and the board meets in secret, with no requirement that its decisions or its reasoning even be communicated to the applicant. But it doesn’t have to stay this way. It is time now for a new governor to begin issuing such decisions, and perhaps, to change how the process works.

Our new governor, Greg Abbott, is an attorney and a former judge with a long history of judicial opinion writing. While not all of us in the legal profession always agree on everything, the value of a clear, transparent process and written public opinions as to why a person was refused or granted a commutation or a pardon would be a welcome change from the last two decades of merciless rejection shrouded in the secretive fog that blinds democracy.

That is something this governor can do, and should do now. We should all challenge him to do so, and to open the process once again so that the people of Texas can actually understand how and when mercy is given, or taken away.

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association.

Clemency Project – Help Needed

July 26, 2015 2 Comments

Lawyers,

Your help is urgently requested.

President Obama has asked criminal defense lawyers from across the country to get clemency petitions before him. Quickly. Time is running out for the President to grant clemency to defendants across the country. There are literally thousands of applications waiting for the attention of a defense attorney to determine whether or not the applicant qualifies for clemency, and if they do, to make the application.

Please, please, please become a part of this historical effort. This goes to the very core of what we do. Non-violent offenders are sitting in jail waiting for you to use the key you hold to unlock the door to their cells and send them home. These defendants are sitting in jail and they do not need to be there any longer, but the opportunity to fix this is quickly disappearing. Please act today.

Get more information here: https://www.clemencyproject2014.org/

Get started here: https://www.clemencyproject2014.org/volunteers/intro

There is a two hour training available and assistance at each stage.

We have an opportunity to get involved and be the largest local bar participating. Our lawyers are some of the best in the nation and we can certainly help by joining in.

Nicole DeBorde and Jim Lavine have already started the training.

Here is your chance to get your legal work in from of the President and help a family, one application at a time.

UPDATE: we are hosting a FREE 1 HOUR ETHICS CLE on how to navigate this process and file your petition. Register online for our September 3, 2015 CLE :: noon, 7th floor attorney ready room, Criminal Justice Center, Houston, Texas

Hollywood: Cold INjustice

July 11, 2015 Leave a Comment

Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.

“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”

Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.

It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.

For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.

Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.

McSpadden Battles Jail Overcrowding

July 9, 2015 1 Comment

Today, Senior District Court Judge Michael McSpadden shared his thoughts with Senator John Whitmire regarding jail overcrowding.

While we do not always agree on each issue, we applaud Judge McSpadden for his efforts in pushing for reduction in low-level drug offenses which would clearly have a major impact on our local jail overcrowding. Rather than shipping inmates out of county for holding, pending court (meaning they have not been convicted of anything), had the legislature reduced the “trace” cocaine cases to misdemeanor class C offenses, a substantial portion of those awaiting trial would be released so that courts, law enforcement, and prosecutors could focus on more serious offenses and more violent offenders. Additionally, barring a legislative change, elected District Attorney Devon Anderson could exercise her prosecutorial discretion to serve the same purpose.

Jail overcrowding is a problem. It must be fixed. Shipping inmates around the state for housing is not the answer.

Thanks to Judge McSpadden for at least attacking the problem and offering viable solutions. Read Judge McSpadden’s correspondence here:

Download (PDF, 80KB)

Alfred Brown Unresolved Matters

June 12, 2015 Leave a Comment

In a letter to Hon. Devon Anderson, Harris County District Attorney, HCCLA calls for action on unresolved matters related to the Alfred Brown prosecution.

As you may be aware, our District Attorney has announced the dismissal of charges against Alfred Brown as being unable to prove their case beyond a reasonable doubt. This dismissal comes after the discovery of exculpatory evidence (tending to corroborate Brown’s alibi), the exposure of improper grand jury badgering of Brown’s alibi witness (Ericka Dockery), and recanting witnesses.

In case you missed it, Lisa Falkenberg (Houston Chronicle) was awarded the Pulitzer Prize for her coverage of this grand jury behavior. Her spotlight on this issue also led to grand jury reform in this year’s legislative session! (Read some more about grand jury reform and the District Attorney’s Office here)

We now call upon the Office of District Attorney to continue the inquiry into the conduct surrounding the initial investigation and prosecution of Alfred Brown and the prosecution of Ericka Dockery, specifically focusing upon potential criminal offenses and unethical conduct by Brown’s lead prosecutor, Dan Rizzo.

Our letter to Devon Anderson can be viewed and downloaded here:

Download (PDF, 2.56MB)

HCCJCC MacArthur Grant

June 3, 2015 Leave a Comment

At today’s HCCJCC (Harris County Criminal Justice Coordinating Council) meeting, Harris County’s grant award was discussed. The County applied for and received one of 20 grant awards (from approximately 200 applicants across the nation) for the MacArthur Safety + Justice Challenge. The County was awarded $150,000 to create a plan to improve public safety while reducing the overuse of local jails. The goal in this “challenge” is to find ways to REDUCE jail population. The grant funds are used to study the problem and come up with a plan (within 6 months) for implementation. The 20 current award winners will compete to have their plan selected for another grant of up to $2 million to be used toward implementation.

The goals of the challenge related to receiving the grants are:

Reduce the number of people coming INTO the local jail
Reduce the amount of time people STAY in the local jail
Reduce the ethnic disparity in the jail population.

As stated during the meeting, the MacArthur Foundation has identified a significant problem: crime rates across the nation have decreased significantly over the the past many years yet our local jail populations continue to rise disproportionately. The challenge looks at only local jail populations and not prisons. It was stated that across the nation 2/3 of those in local jails are “pending trial” so they have not been convicted of anything yet they are incarcerated. For Harris County, they quoted a 74% jail population of those “pending trial.” Thus, we are higher than the national average at pre-trial incarceration rates. The speaker noted that African American’s are 6 times more likely to be incarcerated pending trial, and the mentally ill are 4-6 times more likely to be incarcerated.

A complete study entitled “Incarceration’s Front Door: Misuse of Jails in America” can be viewed/downloaded here:

http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/01/incarcerations-front-door-report.pdf

More information on the Challenge can be found here:

http://www.safetyandjusticechallenge.org/