Velez Hearing Day 3: A Portrait of Constitutionally Inadequate Counsel

By Brian Stull, ACLU Capital Punishment Project at 2:47pm

In Day 3 of the Velez hearing in Brownsville, Texas, I want to take a moment to explain the legal context – the rule of constitutional law – that will entitle Manuel Velez to relief if the judge, the Hon. Elia Cornejo Lopez, credits the facts presented.

The legal journey starts 50 years back with the U.S. Supreme Court’s landmark ruling in Gideon v. Wainwright. There, the court held that the Constitution entitles poor people facing possible imprisonment counsel appointed at the state’s expense.  In later decisions, the court clarified that a poor person’s right to appointed counsel is a right to effective counsel.

So how does an appellate court, after a conviction, test whether the prisoner had effective counsel?  The law gives a two-step test.  First, counsel’s alleged mistakes must be serious errors, not Monday-morning complaints that a different strategy would have worked better. Second, the prisoner has to show that the trial attorney’s mistakes or omissions made a difference in the trial’s outcome – in legal parlance, “a reasonable probability of a different outcome.”

A typical winning claim looks like this. Counsel failed to present readily available evidence of the prisoner’s innocence.  And, had that innocence evidence been shown at trial, it likely would have made a difference in the jury’s decision.

The task in this hearing for Manuel’s counsel, a dedicated team of lawyers from the firms Carrington Coleman and Rothgerber, Johnson, and Lyons, has been to demonstrate counsel’s failures to show that the child victim had been injured long before Manuel had access to him.  Much of the hearing evidence is medical evidence of the child’s injuries that counsel failed to explore in the 2008 trial, which led to Manuel’s capital murder conviction and death sentence.

One of the crucial building blocks is to show that Manuel’s trial counsel had every reason to question the timing of the child’s injuries, but failed to do so.  Yesterday, Manuel’s lawyers did just that with the presentation of deposition testimony of Dr. J. Keith Rose, who had met with Manuel’s trial attorneys in advance of the 2008 trial.  Well before trial, Rose had told trial counsel they needed a forensic pathologist to look at the case, to look closely at brain injuries that appeared based on records to be more than two weeks old, and to create a timeline of injuries based on all available medical records. Rose also testified to medical records (in the months before the child’s death) showing a dramatic increase in the child’s head circumference, a cardinal sign of head trauma.  Rose testified that counsel in 2008, while asking advice on what to do, had not brought him these crucially important records.

The second building block is to show that, had appropriate experts been called, a timeline created, and all records gathered, the result of Manuel’s 2008 trial would have been different.  Many experts are testifying along these lines in this hearing.  Today it was Dr. Ronald H. Uscinski, a renowned neurosurgeon whose academic work was cited in a recent U.S. Supreme Court opinion.  Uscinski showed the court the child victim’s CAT scan and microscopic slides of his brain, both of which showed that the injuries ultimately resulting in his death happened months before Manuel was involved with the child’s family.

Attorney Tami Goodlette ended her examination of Uscinski the same way the team ended with many of their experts: “Had Manuel Velez’s attorneys called you and asked you to a render an opinion at his 2008 trial would you have told the jury what you testified to today?”  The answer was yes.The hearing continues Friday with testimony by several witnesses, including one of the attorneys who represented Manuel at his unjust 2008 trial.

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Who’s The Criminal When Austin Police Infiltrate Protestors and Encourage Commission of Felonies?

By Debbie Russell

Editor’s Note: The Harris County hearing was reset for three weeks from today. State District Judge Joan Campbell told the prosecutors she was “floored” that the role of an Austin
police detective has not been disclosed. 

Our friends at the ACLU-MA have already provided the linear version of events here. A more detailed account by Jordan Smith of The Austin Chronicle is here. First to break the news was an active Occupy Austin participant, Kit O’Connell, blogging here at FiredogLake.com, which includes the most relevant portions of the transcript of the hearing in Houston last week that brought to light these activities.
On Wednesday, September 5, in a Harris County court, a judge will rule to proceed forward or move to dismiss, essentially by suppressing much of the prosecution’s evidence against the Occupiers.

Background: Across the United States, urban police departments prioritize the drug war and the so-called “war on terror” over simply rooting out violent criminals. The war on drugs targets non-violent, low-level users for the most part, in an effort to log higher arrest numbers such that it appears they are doing their job. The war on terror, formerly the purview of federal entities, and now being done in conjunction with them, takes many forms including: data-mining; spying on people without prior cause; infiltration of activist groups (many times acting as provocateurs); and the use of military tactics to chill free speech.

Case in point: Evidence is mounting that an undercover Austin Police detective induced members of Occupy Austin to commit felony obstruction of a roadway during a demonstration in Houston in December 2011. Or, did he – and two colleagues – intervene in protester plans in order to keep them, and police and firefighters responding to the Houston protest, safe?

The big question is did Austin Police Chief Acevedo order or approve the operation? There’s no doubt that it happened…one of the undercovers proudly admitted it in a court hearing last week. He said he pushed for activists to “step it up” and suggested building lock boxes – a riskier action than simply linking arms to block a roadway. The problem is, participants didn’t know it was “felony” risky! Never before had this action brought more than a misdemeanor charge, but an assistant district attorney in Harris County found a way to bump it up by claiming the lock boxes could have been hiding explosives (a sad irony since the real activists are committed to non-violence).The main risk with lockboxes is that they can be harmful to the users depending on how public safety officials choose to remove them.

Bottom line: Those in charge of our public safety not only lied about who they were and encouraged riskier actions than were being initially planned, but they bought the materials, assembled them and delivered the “criminal instruments” to the activists, putting them at risk of injury and unintended commission of a felony. In no way did this activity by APD protect anyone from harm. In fact, it created it.

Debbie Russell is an Austin-based activist and ACLU of Texas volunteer.

Guest Blog: Voices from the Austin/Travis County Reentry Roundtable

By Emily Rogers
Planning Coordinator, Austin/Travis County Reentry Roundtable

In its self-evaluation report to the Sunset Advisory Commission, The Texas Department of Criminal Justice (TDCJ) says that one of its biggest opportunities for improvement lies in the reentry of offenders into the community.  There’s good reason for TDCJ to focus its attention on reentry. After all, 95% of incarcerated people will eventually come home to their communities. Reentry is not an option. It’s inevitable. As such, planning for reentry as soon as a person enters the criminal justice system is a necessity for building stronger, safer communities. Reentry and full reintegration into society should be an explicit goal of our criminal justice system.

The sunset review of Texas’ criminal justice agencies provides Texans an opportunity to take stock of the current system. The Austin/Travis County Reentry Roundtable offers the following suggestions for making reentry work:

·         Use evidence-based practices to provide rehabilitative programming tailored to individual need.

·         Urge reentry planning and planning for continuity of care to begin at entry into the criminal justice system in particular for vulnerable populations.

·         Promote partnerships between criminal justice entities and the community, which can be used to monitor and sustain the reintegration of individuals exiting the criminal justice system.

Supporting reentry involves a shift in thinking about how people who break the law are punished. The shift requires adopting strategies that will maximize the gain to public safety rather than focusing solely on incapacitating people by locking them up. To promote successful reentry and reintegration, legislators and public officials need to hear that the citizens of their communities are ready to use smarter, cost-effective, community-based approaches to criminal justice.

If you would like to know more about the Austin/Travis County Reentry, you can visit our website.  You can also contact Jeri Houchins at jerijeanw@gmail.com or Emily Rogers at emilyrrt@gmail.com. The full report on our recommendations to the Sunset Advisory Commission can be found here. Our meetings and events are open to anyone interested in reentry. Our calendar can be found here.

Interested in getting more involved with the ACLU of Texas’ Criminal Law Reform Campaign?  Sign up to be a CAN Activist!


Religion in Public Schools: Why can students lead prayers, but not teachers?

January 19th, 2012 No Comments   Posted in Uncategorized

By Rebecca Robertson
Director of Public Policy and Advocacy

Here at the ACLU of Texas, we get a lot of flak for wanting “to take prayer out of public schools.”  (Not that we mind.  It’s our job to stand up for liberty when others won’t.)  But at least our critics ought to get the facts straight!  We’re not opposed to prayer in school if it’s initiated by students.  What we do oppose is prayer being forced on students by teachers, coaches, or school administrators.

So what’s the difference?  It’s right there in the Constitution!  In our first post on the Religion in Public Schools blog series, we discussed how the First Amendment guarantee of religious liberty has two parts:  freedom to exercise one’s faith (or no faith), and freedom from government intrusion.

The freedom to exercise one’s faith protects a student’s right to pray in school, whatever her religion.  Students can even invite their friends to join them in prayer.  For example, “see you at the flag pole” events, where students meet at a pre-arranged location to pray together before school, are permissible so long as students are the organizers and attendance is voluntary.

But the flip side of making sure that students have the freedom to follow their individual beliefs is making sure that school officials don’t force their own religious views on kids.  The Constitution prohibits the government from telling people that they must pray at a certain time or in a certain way.  That’s why schools cannot have someone lead an official prayer at a football game or at graduation, even if the prayer is non-sectarian.  Schools cannot be in the business of coercing students to listen to or participate in prayer that conflicts with the students’ beliefs.  Only kids and their parents have the right to decide whether and how school children pray.

We hope we’ve cleared things up.  Students have the right to pray or not according to their own personal beliefs, and government-run schools need to stay out of it!

Up next – Bibles in Texas classrooms.


A Few Simple Changes Would Limit Eyewitness Misidentifications

December 1st, 2011 No Comments   Posted in Uncategorized

By Matt Simpson
Policy Strategist

Eyewitness misidentifications have accounted for 80 percent of the 44 wrongful convictions that have been overturned in Texas. One way to reduce wrongful convictions is to ensure the process of eyewitness identification is not influenced by law enforcement and that identifications are affirmed.

During the 2011 session, the Texas legislature passed important reforms to the way eyewitness identification is handled.  The bill, HB 215, mandated local law enforcement develop written policies guiding officers on conducting eyewitness identification interviews and tasked the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT)  at Sam Houston State University (working with stakeholders) to develop a model Eyewitness Identification policy for law enforcement.

The ACLU of Texas, along with the Innocence Project, the Innocence Project of Texas, state legislators, and a host of other criminal justice policy and law enforcement experts have proposed some protections to include in the proposed Eyewitness Identification policy, including:

-          Blind Administration, meaning  the police officer administering a photo or live lineup doesn’t know the suspect;

-          Setting up a procedure in which the suspect doesn’t stand out in the lineup, the eyewitness doesn’t see the suspect in multiple lineups, and the eyewitness is told that the perpetrator may not even be in the lineup and the investigation will continue regardless of the lineup result;

-           Lineups should be videotaped whenever possible to protect suspects from any misconduct by the lineup administrator and to help the prosecution by showing a jury that the procedure was legitimate;

-          Immediately following the lineup, the eyewitness should give a statement about his/her level of confidence in the identification.

Following a stakeholder meeting in September 2011, LEMIT proposed a decent policy including many of the previously mentioned procedures.  As the policy is finalized, the ACLU of Texas and other proponents continue to advocate for additional measures:

-          Specific step-by-step guidance about how to conduct an eyewitness identification interview;

-          Sequential presentation of suspects because the current proposed policy lacks clear direction; also research indicates that sequential presentation is preferable to a “photo array” or the viewing of multiple suspect photographs simultaneously;

-          Witness statements should be recorded (whether in video or written form) in the witness’ own words.  Clearly, video and audio recording are preferred, but even if an officer is taking notes, there should not be any alteration of the words spoken by the witness when articulating the degree of certainty the witness has in a selection from the lineup;

-          Use of a qualified interpreter (such as a court certified interpreter) if a witness is more comfortable doing an interview in a language other than English. Or, the proceedings should be video and audio taped.  It is extremely important to ensure effective communication or there is a risk of losing the nuance of witness statements made during and after identification which could undermine the ability of the judge and jury to determine guilt or innocence.

On December 1, Matt Simpson, Policy Strategist with the ACLU of Texas, will testify about changes the civil rights organization would like in the proposed policy.  Stay tuned as we continue to work with LEMIT and other stakeholders to ensure the innocent are not wrongly convicted in Texas.


Private Prisons: How the Industry Sells Such a Bad Product

By Kirsten Bokenkamp
Communications Coordinator

There is no evidence that increased criminal penalties and stiffer sentences benefit society or lower crime rates.  In fact, as Texas has shifted away from incarcerating non-violent offenders, serious crimes have declined.  This is something the private prison industry doesn’t want the public to know and the industry has developed ways both to advocate for locking up more people for longer periods of time and for convincing some lawmakers that private prisons are the best place to put these prisoners.

The ACLU Banking on Bondage report dedicates a section to exploring how the industry markets its product.  As the report explains, not every private prison company is guilty of all these tactics, but overall the impact is powerful enough to undermine smart-on-crime solutions to over incarceration.

  • Questionable Financial Incentives

Money is power, and the report cites instances of legislators and other government officials accepting financial incentives from the private prison industry. For example, in Pennsylvania, a county judge who was responsible for skyrocketing rates of imprisoned juveniles was found guilty of racketeering, money laundering, and conspiracy in connection with his acceptance of $1 million from the developer of a private juvenile facility that was benefiting from increased juvenile sentencing.

  • The Revolving Door Between Public and Private Corrections

A large number of private prison industry employees were previously employed by state corrections. online casino .  As the report documents, this has resulted in some private facilities not being scrutinized by the government departments that are charged with overseeing them.   In one of the more egregious cases the report highlights, a West Texas juvenile facility run by The GEO Group, Inc was awarded a 97.7% grade for overall compliance. An independent review of the facility found that “cells were filthy, smelled of feces and urine, and were in need of paint.[and] water leaks [were] numerous throughout the facility, creating an unsanitary and unsafe environment for all youth and staff.”  The independent auditors actually left the facility with large amounts of fecal material on their shoes.  The review found that some of the state-employed monitors of this facility had recently worked for GEO before changing positions.

  • The Private Prison Lobby

The private prison industry heavily lobbies both state and federal governments.  For example, the report finds that between 1999 and 2009, Corrections Corporation of America (CCA), the largest private prison corporation, spent over $18 million on federal lobbying alone.   Many companies also hire lobbyists to influence various state governments. Furthermore, the report shows that the American Legislative Exchange Council (ALEC), a group that brings together state legislators and private corporations, drafted successful legislation designed to promote mass incarceration at the state level. CCA had a major role in the development of this legislation.

  • Campaign Contributions

It doesn’t stop with lobbying – the private prison industry spends massive amounts of money on campaign contributions.  The report shows that since 2000, the leading private prison companies have contributed more than $6 million to candidates for state office.  CCA and GEO also have their own political action committees.

  • Control of Information

Maintaining a positive public image is of utmost importance to any successful industry and the private prison industry is no different. They have well-done websites that highlight their “good” work and hire communications firms to write puff pieces that highlight awards, charity events, and a shining (but not representative) example of how they care about the well-being of prisoners. Not surprisingly, negative reports – about cases of sexual abuse or violence in facilities, for example – rarely get communicated to the public. Furthermore, private prisons are not held to the same open government standards as their public competitors, which means that it can be near impossible to get information about what is actually going on behind private prison walls. CCA has even blocked information from a group of concerned shareholders.

It is incredible that a policy so important to society – how we deal with offenders – is shaped more by the power of money, lobbying, and public relations than justice or community standards. Next week’s blog on the Banking on Bondage report will examine the false claims of cost savings and safety promises the private prison industry uses to sell its wares.


Breaking Schools’ Rules: Focus on Solutions Backed by Evidence

September 13th, 2011 1 Comment   Posted in Uncategorized

By Frank Knaack
Associate Director of Public Policy and Advocacy

The Breaking Schools’ Rules report clearly demonstrates the need for Texas lawmakers to review and reform school discipline practices. One sensible, effective and cost effective approach is positive behavioral interventions and supports (or PBIS for short). PBIS improves individual student behavior by coordinating behavioral supports and interventions throughout the school environment. It functions as a guide for all school administrators and staff by establishing a multi-tiered system for selecting and implementing evidence-based behavioral interventions.

Though historically PBIS was associated with special education interventions, research has shown that it is a powerful tool for bringing school-wide reform that benefits all students. In those schools where PBIS is effectively implemented, data has shown:

o Reductions in disciplinary problems and referrals
o Increased academic achievement
o Decreased anti-social behavior, such as bullying
o Increased attendance (which has the added benefit of more money for cash-strapped districts)

Schools benefit from PBIS by fostering safer and more academically successful campuses, while students benefit from PBIS by experiencing a less punitive school climate and a reduced likelihood of being referred to the juvenile justice system.

During the 82nd Texas legislative session, our proactive efforts at the Capitol in the area of school discipline were focused on furthering evidenced-based approaches to discipline in Texas’ public schools, such as PBIS. As the evidence demonstrates, if realized these efforts would have made our students, teachers, and administrators more safe and our schools more productive.

While our efforts at the Capitol came up short during the last session, we made great progress in educating legislators and their staff about the importance of moving toward PBIS in Texas schools. We are optimistic that these necessary reforms will succeed in the 83rd session, but to succeed we also know that we will need your help! Stay tuned.


A Statewide Review of Conditions for Pregnant Inmates in County Jails

August 17th, 2011 No Comments   Posted in Uncategorized

Matt Simpson
Policy Strategist

 In 2009, the ACLU of Texas and the Texas Jail Project (TJP) worked with state legislators to pass laws protecting pregnant inmates and babies born to incarcerated mothers.  Our follow-up research shows those reforms have failed in several respects.

In a previous blog, the ACLU of Texas discussed challenges facing jails seeking to implement the Shackling Ban passed into state law in 2009.  Along with reforms to the use of restraints on pregnant inmates during transport, labor and delivery, in 2009 the Texas legislature passed laws requiring standardized procedures for jail policies relevant to pregnant inmates.  Texas jails are now required to create specific policies for pregnant inmates ensuring appropriate medical care, mental health care, nutritional standards, and housing and work assignments.  The Texas Commission on Jail Standards (TCJS) is to maintain records of these policies and ensure county jails comply with their internal policies.

While researching the implementation of this state law in the six largest county jails in Texas, we found a host of concerns remain, including:

  • A lack of consistency, specificity and expertise in Texas’ most populous jails;
  • A failure to address mental health care needs of pregnant inmates;
  • Widely varying standards for prenatal nutrition;
  • Inattention to special housing needs; and
  • A lack of clarity regarding work assignments for pregnant inmates.

The lack of consistency, specificity and expertise in county jails breaks down to 5 specific areas of jail policy.  First, jails in Bexar County and El Paso County conduct immediate pregnancy screening at intake for female inmates, a practice other jails should consider adopting.  Second, some jails do not have clear policies regarding how long a pregnant inmate must wait to receive obstetric care following initial booking and intake into the jail.  Third, some jails do not have policies related to follow-up prenatal care.  Fourth, there is wide variation in policies addressing high risk pregnancies. Fifth, the El Paso jail has a few simple measures in place for dealing with emergency pregnancy care that should be considered by other jails.

 Solutions

The ACLU of Texas recommends empowering TCJS to assist county jails in creating strong and specific policies that ensure consistently appropriate care for pregnant inmates across the state.  TCJS should be encouraged to review internal jail policies relevant to pregnant inmates, conduct interviews of pregnant inmates during jail inspections, and generally review the quality of medical care available to pregnant inmates.  Jails should be required to set specific timelines for screening, provide for ongoing care, and enact measures to ensure staff know how to handle emergency situations and high-risk pregnancies.  TCJS should work with jails to ensure appropriate mental health care is available to pregnant inmates.  And, finally, nutritional, housing and work assignment policies should be standardized in jails across the state.

These common sense updates to current jail policies would ensure the health of women and children incarcerated in Texas jails and would reduce the legal liability such jails currently face because of weak or unclear policies related to pregnant inmates.  Wanna help?  Tell the Texas Commission on Jail Standards to implement the ACLU of Texas’ recommendations.


Breaking Schools’ Rules: The Economic Impact of Dropping Out of School

August 16th, 2011 1 Comment   Posted in Uncategorized

Kirsten Bokenkamp
Communications Coordinator

When a teenager drops out of high school, it is a personal and family tragedy. It is also a community tragedy that affects all Texans. Last week’s blog on the Breaking Schools’ Rules report reminded us that students who are disproportionately disciplined at school for relatively minor infractions are more likely to drop out of school, and are also more likely to be in contact with the juvenile justice system or incarcerated as an adult later in life.  Children of color and special needs students have a greater risk of ending up in one or all of the above situations. 

We learned last week that dropping out of school leads to higher incarceration rates. The economic and social impacts are substantial.  Under- and unemployed people contribute little to the economy or, worse, end up in prison, costing Texans an estimated  $50.19 per inmate per day.  In fact, a recent study by the Texas A&M Bush School of Government and Public Service estimated that dropouts from the senior class of 2012 will cost Texas between $6 and $10.7 billion, over their lifetimes. 

And, dropouts who don’t end up in prison still end up contributing much less to the economy.  In a recent Northeastern University report, the authors found that “[s]lightly less than 46 percent of the nation’s young high school dropouts were employed on average during 2008.” This unemployment rate is “22 percentage points below that of high school graduates.” In terms of earnings, the high unemployment rate for dropouts translates to mean annual earnings of just $8,358 in 2007, compared to $14,600 for high school graduates with no post-secondary schooling and $24,800 for those with a bachelor’s degree.

This should be a wake-up call to all Texans. For the sake of our future, we must work to keep youth in school.  School discipline, over-reliant on ticketing and suspension for relatively minor misbehavior, is pushing far too many kids out of school and into the juvenile justice system.  The ACLU of Texas will continue to work with legislators and with local advocates to address the disproportionate and counterproductive impacts of school discipline.  If you are interested in working with us as we seek to change local and statewide discipline practices, join the ACLU of Texas Community Action Network  (CAN) and get involved in our efforts to reform school disciplinary practices.


Enforce existing law to stop bullying

March 22nd, 2011 No Comments   Posted in Uncategorized

By Frank Knaack
Policy and Advocacy Strategist

The Senate Education Committee heard testimony today on three bills seeking to address the serious issue of bullying in Texas schools. The testimony included the tragic stories of three kids who committed suicide after undergoing years of bullying at their schools. The victim’s parents testified that they followed procedure – they had gone to their kids’ schools and asked the schools to intervene … to stop the bullying. Their calls for help were ignored.

The testimony we heard today from these parents matches what the ACLU has been told by the victims of bullying for years … despite existing law prohibiting bullying in schools and existing law requiring the enforcement of that prohibition, the pleas for help at school are often ignored. The result is unacceptable.

The solution? We must hold school officials accountable when they fail to protect Texas’ children.

Of the bills currently under consideration by the Legislature, Senator Whitmire’s SB 205 comes closest to a real solution. SB 205 creates a clear statutory framework to ensure that district officials report, investigate, and respond appropriately to allegations of bullying or harassment. In addition, SB 205 requires that each school policy identify a school official responsible for ensuring the policy is implemented.

SB 205 will provide the process to help ensure that allegations of bullying and harassment are reported, investigated, and remedied in all Texas public schools. Please contact your legislators today and urge them to support SB 205. With your help, we can all make Texas schools a safe place!


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