Archive for the ‘Criminal Law Reform’ Category:
The primary goal of Texas county juvenile justice facilities is to rehabilitate juveniles in order to develop good behavior and deter potential repeat criminal activity. However, new amendments proposed by the Texas Juvenile Justice Department (TJJD) on chemical spray in county juvenile facilities threaten the overall objective of juvenile justice and the safety of the youths and staff involved. The TJJD has proposed amendments to the Texas Administration Code Chapter 343, which would expand the chemical use of oleoresin capsicum (pepper spray) as an ordinary restraint method at county juvenile rehabilitation centers across the state. Not only does use of chemical spray negate the goal of rehabilitation, the use of this chemical restraint as punishment is outdated, ineffective, and harmful—not to mention, the proposed amendments lack proper definitions and guidelines to prevent the abuse of discretion in the facilities, opening the doors for medical claims against the state.
A report to the Council of Juvenile Correctional Administrators found that facilities with high numbers of restraint and chemical incidents are more likely to produce higher rates of safety problems because of youth and staff injury, suicidal behavior, and fear among the youths from injury by staff.
The reported higher rate of incidents explain why the Council of Juvenile Correctional Administrators’ annual, national survey revealed only six state juvenile corrections agencies authorizing the use of chemical spray in order to secure the facilities: The low national authorization is due to data that shows negative impacts on the staff, juveniles, and facilities when it is used. The survey also showed that 15 agencies authorized chemical restraints, but not necessarily for the staff to carry on their person. Nine of those 15 agencies only authorize chemical restraint as a last resort measure. Overall, nearly 90 percent of the total juvenile correctional agencies do not authorize staff to carry chemical spray as a means to secure facilities.
The American Bar Association (ABA) standards for Juvenile Justice allow chemical restraint only in extreme situations and under strict controls. The ABA also requires the department to adopt regulations that closely govern such use. Not only would improper training and use of chemical restraint put the youth and staffs’ health at risk but would also result in the county and juvenile facility as subject to numerous investigation and lawsuits.
At present, the proposed TJJD code allows for use when the juvenile exhibits “physical aggression.” That’s a term open to broad interpretation and without a more narrow definition, there is no limit to the use of the chemical spray.
To mitigate this risk, the TJJD needs to get more specific about uses and training. For one, the amendments should strictly prohibit use to situations where there is a certain risk of life or serious bodily injury. This language would help safeguard the use of chemical spray only as a last resort effort in cases of extreme crisis. The amendment does make room for a provision that requires staff to abstain from use of the chemical on juveniles with respiratory or eye conditions. Strangely enough, there’s no indication of how these individuals would even be identified. When staff members are instructed to react to any form of “physical aggression,” it’s unlikely they would stop to inquire about a youth’s eye or breathing conditions.
Also, the TJJD should better define who would be required to train the staff in proper use of the chemical spray. The current draft is mute on this matter, a vagary that could result in improper training and place the well-being of staff and youths in danger.
The TJJD should scrap these proposed amendments altogether. Various national written standards of chemical restraint reiterate the fact that pepper spray should not be used at all. However, if the TJJD insists on moving forward with authorization, it should adhere to strict rules regarding usage, reporting of usage, and post-use practices. To do so, the agency needs to draft amendments that are strictly and clearly defined. Presently, the TJJD falls well short of this mark and the consequences could be devastating.
Read our letter to TJJD on their proposed changes to pepper spray rules:
Update: After listening to concerns from the ACLU and our fellow advocates, TJJD has chosen to delay consideration of this new standard until January 2014.
On Tuesday, the Senate Jurisprudence Committee will hear HB 62, a bill filed by Representative Ryan Guillen that proposes to limit investments by judges in private prison companies. The bill would prevent conflicts of interest similar to the dramatic incident in Pennsylvania in which a judge was found guilty for routing defendants through his court and into facilities in which he held a financial interest.
Clearly, Rep. Guillen wants to prevent judges from being unduly influenced by their investment in a private prison. The bill will also demand greater accountability and transparency among private prisons in general.
But this is just one small step toward what should be much larger scale reforms. Rep Guillen is familiar with the host of issues surrounding private prisons: He represents a district in South Texas that includes the privately-run, federal immigration detention facility Willacy Detention Center, located in Raymondville, TX.
Those issues include the following:
First, private prisons do not have the same obligations under the state’s Public Information Act as other state-run entities. Texas should clarify in law that private prisons (and really any entity that contracts with the state) have the same obligations to provide public access to records related to the expenditure of state money. Presently, private prisons can avoid full transparency.
Second, the process by which a private company is brought into a community should involve greater public input. The local community should have a say when a private prison comes to town—or when a company takes over a publicly run facility. Too often, decisions to privatize jails and prisons are made quickly and without public input. Requiring a public hearing is one way to fix this. In 2009, the ACLU of Texas and other advocacy organizations suggested as much in HB 3903; unfortunately, that bill didn’t pass, and the proposal has not progressed since.
Finally, HB 62 almost implicitly begs the question: Who else is receiving money from private prisons? HB 3903 (from 2009) and many other proposals have encouraged the state legislature to limit investments in and direct income from private prisons by and to individuals with potential conflicts of interest, e.g., county officials, sheriffs, and other community leaders, as well as policymakers who could similarly benefit from the privatization of prisons or jails.
Rep. Guillen has taken the lead, pushing this issue to the forefront in the Texas legislature. But we should view this bill as the first step—not the final reform—toward improving transparency and accountability for privately run prisons.
By Gislaine Williams, ACLU of Texas Outreach Coordinator
We are fast approaching the start of the 2013 Texas legislative session. Starting January 8 through the end of May, Texas lawmakers will meet in Austin for the 83rd Legislature. They will be proposing, debating, and passing laws that will impact all of us.
As Texans, we have the right and responsibility to be a part of this political process. You can make a difference by raising your voice to demand policies that will make a positive change in our communities. Learn how to become a grassroots activist at Community Watchdog TX.
The first step is to educate yourself. Become familiar with the major issues in Texas. Learn about the legislative process and get to know your representatives. Our toolkits provide you an overview of the critical issues facing our state:
- Criminal Justice TX: Learn about mass incarceration, the rise of for-profit prisons, and the death penalty.
- Educate, Don’t Incarcerate: An overview of school discipline policies pushing students out of school.
- Religious Freedom: A look at how our religious freedoms are threatened in Texas.
- Immigrants’ Rights: Find out how we’re working to reclaim the civil rights of all Texans, regardless of immigration status.
- Find out who your representatives are here.
- Learn how a bill becomes a law here.
Contact your legislator. There are a number of ways you can contact your representative about an issue. You can write a letter, telephone, or set-up a meeting in the local district office. Use our lobbying guides to learn how.
Ready to meet with your legislator? We can help you schedule and prepare for your local meeting. Just email email@example.com to get started.
Lobby with us in Austin! The ACLU of Texas will host our first ever Symposium & Lobby Day in Austin Feb. 10-11. On Feb. 10, you will hear from advocates and policy experts working on criminal justice and immigrants’ rights issues. The following day we will go to the state capitol to meet with representatives to talk to them about the major civil liberties issues in our state. Sign-up today to receive more information.
Stay involved. Join the Community Action Network to get updates on ways you can advocate for change this legislative session.
By Brian Stull, ACLU Capital Punishment Project at 12:02pm
Yesterday was the final day of the hearing in Brownsville, Texas, for ACLU client and former death-row prisoner Manuel Velez. Judge Elia Cornejo Lopez heard summations, requested the parties to prepare proposed findings for her consideration, and announced that a decision would come at a later date.
For me, the hearing confirmed a longstanding ACLU observation: our indigent clients’ fates often hang on an arbitrary fact completely outside the client’s control and separate from questions of guilt and culpability – the quality of appointed counsel.
The hearing highlighted the following facts: 1) The state charged Manuel with the capital murder of a child, who with his mother and siblings had lived with Manuel for only two weeks, based on a theory that the child was completely healthy and only started receiving injuries during the two weeks he lived with Manuel. 2) On minimal examination, the medical evidence presented a strong defense, undisputed in this hearing, that the child began suffering very serious injuries far outside of this two-week window. And, 3) defense counsel did not explore or present any of this evidence.
The final witness at Friday’s proceedings was one of the two attorneys who had represented Manuel at trial, who was called to explain his work in the case. The other attorney was lead counsel, much older and more experienced; but he had died about a year ago. The second-chair attorney confessed that he deferred to the decisions of the other attorney to neither obtain the aid of a forensic pathologist nor mount any defense concerning the age of the child’s injuries.
In a bizarre twist, the prosecutor on cross examination highlighted the defense attorney’s many failures to live up to the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases – frequently upheld by the U.S. Supreme Court as the standard for evaluating counsel’s effectiveness. The prosecutor wanted the attorney to state whether he failed to meet those guidelines, or whether he was merely blaming his deceased co-counsel.
In somber tones, the attorney said that he bore his own responsibility to Manuel, and that he knew he had failed him. Asked by the judge what he would do differently if he had the chance, the attorney stated that it was clear to him that Manuel “is innocent.” He said he would hire Manuel’s habeas counsel, attorneys from the law firms Carrington Coleman and Rothgerber, Johnson, and Lyons, who would clearly obtain a different result.
As habeas counsel Greg Kanan stated in today’s summations, “There was a gross failure here by defense counsel and it must be remedied by a new trial.”
That is the just result we hope to see.
In a system that allows for defense lawyers who fall short of constitutionally minimal standards and leads to the execution of innocent people, the death penalty cannot rationally stand.
Day 4 of the Manuel Velez innocence hearing on Friday in Brownsville, Texas, brought into focus the plight of the poor, depressed, and overwhelmed young mother of the child victim who died — a mother who desperately needed help but never found it.
At a 2008 trial, Manuel was convicted and sentenced to death for killing 11-month-old Angel Moreno. Before Friday’s testimony, most of this hearing’s evidence has been the testimony of experts who showed that the child’s injuries were caused at a time when Manuel was not involved with the family and had no access to the child.
Witnesses Friday described the months leading up to the boy’s death, and the struggles his mother, Acela Moreno, faced. A friend testified that troubles started when Moreno came to her home at 3:00 a.m., with one of her three children in her arms. Moreno asked for money so she could flee the home of Juan Chavez, the father of the victim in this case, who was abusing her. The friend had provided money to Moreno in the past. On another occasion, the friend drove Moreno to a battered women’s shelter.
Friends and neighbors of Moreno described her as struggling and very depressed — she would cry frequently. She did not have a job. And she was caring for three children. The witnesses told the court Moreno could be found drinking a beer in the middle of the day; that she seemed to get easily frustrated.
At times Moreno lashed out violently at her children, including an occasion when she pushed her into a ceramic statue, breaking the statue and injuring the child’s head. An ambulance arrived and sought to take the child to the hospital, but Moreno refused.
This is a person society needs to help — not only for her own benefit, but to protect the children involved. Too often, there are inadequate resources to help such people. In this case, society clearly failed Moreno and her children. And it has become clear in this hearing that the result was the death of Angel.
Authorities only compounded this tragedy when they then charged Manuel with capital murder and sought his death sentence – as a direct result of Moreno moving in with him as she fled domestic violence.
The resources spent to convict Velez and to obtain his death sentence were considerable. Three prosecutors, three experts, and two appointed defense counsel participated in the 2008 trial, not to mention the judge and court staff. Even more resources have now gone into challenging Manuel’s death sentence – the Court of Criminal Appeals reversed it – and in challenging his conviction as false and unsupported.
Velez’s conviction and death sentence has been a tragedy for him and his family. He has been wrongly imprisoned for seven years. But the case also shows the tragedy of a society unable to care for its most vulnerable citizens. By repealing the death penalty and redirecting a fraction of the resources spent to carry it out, we could help many families struggling with mental illness, depression, drinking problems, and domestic violence. Tragedies like this one can be averted.
We also heard Friday from trial counsel from 2008, who fully admitted during testimony his serious mistakes in handling the trial. The hearing will conclude today.
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.
We’re in day 2 of the Manuel Velez innocence hearing in Brownsville, Texas. As we’ve previously explained, this case posed a dilemma because two adults were in a Brownsville home on Halloween 2005 when 11-month- old Angel Moreno was taken to the hospital unable to breathe. Both adults, Manuel Velez and Acela Moreno, the boy’s mother, pointed the finger at one another as the perpetrator. But no witness, physical, forensic, or other evidence suggests Manuel ever hurt this or any other child.
Nevertheless, to prove Manuel was the perpetrator – and convince a jury to sentence him to death – the state claimed that Manuel must have killed the child because the child only began showing evidence of injuries and abuse during the two weeks in which he (and his mother) lived with Manuel. Those two weeks ran up to the day the child was hospitalized.
At Manuel’s 2008 trial, the key to the state’s timeline theory was the testimony of, Dr. Norma Farley, a forensic pathologist. Farley stated in her trial testimony that the child’s injuries were all two weeks old or less.
Much of that changed today, dismantling the state’s timeline theory. Farley told the court today that various injuries occurred outside of the 14-day window when he lived with Manuel. First, she agreed with the neuropathologist, to whom she had sent the child’s brain for evaluation, that the child suffered brain injuries going back 18-36 days. That means those injuries had to have occurred while Manuel was in Tennessee working construction (from Sept. 10 to Oct. 14). Second, she conceded the child’s skull fractures could have been up to 20 days old. Third, she identified a scar on the child’s foot at the time of autopsy that was far more than two weeks old. The scar, Farley testified, appeared to be an intentional burn to the child’s foot.
Put all of this together with prior proof that Acela Moreno had admitted to biting and burning her child, and the only logical conclusion is that Manuel Velez is innocent and Acela Moreno guilty.
Farley’s testimony also shone a light on defense counsel’s woefully inadequate performance at Manuel’s trial. She testified that, if any lawyer for the state or defense had bothered to ask her the same questions she faced today, she would have disclosed that the child had injuries older than 14 days. Appallingly, Manuel’s trial counsel, who was charged with protecting his rights, never asked these questions.
So this hearing is not only about innocence, but about whether Manuel received the adequate assistance of counsel required by the Sixth Amendment. Farley’s testimony showed that counsel fell far short of what’s required.The hearing continues tomorrow.
The façade of the U.S. Supreme Court bears the motto “equal justice under law.” But that ideal is not confined to our high court. People across this nation seek out the courts for equal justice – a fair hearing, regardless of skin color, creed, or wealth. I spent yesterday in one of those local courthouses — in Brownsville Texas, just across the border from Mexico – observing the innocence hearing of former death-row prisoner Manuel Velez.
Hopes did not necessarily start high for Manuel and his many family members in attendance. That’s understandable. The last time they were in this courthouse was 2008. Manuel was convicted and sentenced to die for a crime he did not commit based, at best, on half- truths and incomplete and unreliable medical evidence. A poor person, Manuel had been assigned attorneys to safeguard his rights, but the attorneys, including one known for a drinking problem, did nothing to expose the huge and readily identifiable problems in the state’s case. With the state’s spurious claims going completely untested, this wasn’t a fair trial for Manuel; it wasn’t the fair shot at justice we count on as Americans.
That picture changed with the opening of yesterday’s hearing. Many of Manuel’s family members appeared in a strong show of support – his father, mother, two sisters, brother, a nephew and others were present. The family could see that Manuel now had lawyers who would stand up and fight for his rights. They could also see that the 2008 trial judge, Abel Limas, was gone from the bench, having been federally convicted of corruption. The family could see that his replacement, the Hon. Elia Cornejo Lopez, was intensely interested in the facts of the case, asked her own questions, and showed fairness to both sides. A palpable sense of relief filled the courtroom. Manuel’s family doesn’t know what the outcome will be, but they can see Manuel may have a chance at an equal shot at justice.
Today’s evidence began the process of exposing huge problems with the state’s theory of Manuel’s guilt, namely that the child victim had never been injured until the last two weeks of his life when he and his mother moved into a home with Manuel. Before that two-week period, the state contended, both the child had no injuries and Manuel had no access to the child.
Under skillful questioning by Manuel’s attorneys, Lyndon Bittle, partner at Carrington Coleman, and Greg Kanan, partner at Rothgerber, Johnson, and Lyons, medical experts outlined the bases of their findings that the child’s injuries were well over two weeks old.
One expert, a forensic pathologist, showed that the already healing injuries to the child’s brain, examined microscopically, were at least 18 to 36 days old. A second expert found the injuries were at least three weeks to a month old, if not older; he analyzed the child’s significant skull fractures and found them to be around the same age. These pathologies were consistent with alarming growth in the circumference of the child’s head in the months before his death. The experts testified that, in the absence of other explanations not possible here, such dramatic growth in circumference could only be caused by head trauma.
Day one of the hearing is now complete. It is one step in the direction toward justice.
By Brian Stull, Senior Staff Attorney with the ACLU Capitol Punishment Project
Imagine you are caring for a toddler and suddenly he stops breathing. You quickly get him medical aid, but it’s too late: the child dies at the hospital where medical personnel were unable to revive him. That would be a horrific nightmare for anyone, but things got even worse for Manuel Velez when this happened to him in Brownsville, Texas, on Halloween in 2005.
In a tiny home in a poor section of Brownsville, Manuel was watching two other small children and 11-month-old Angel Moreno for about 20 minutes when Manuel discovered Angel in distress. He awoke Angel’s mother, Acela Moreno, who was napping but who herself had been alone with the child only 20 minutes earlier. The two rushed to a neighbor’s home to call 911. Angel died at the hospital. Both Acela Moreno and Manuel Velez were charged with his murder.
Acela Moreno was a natural suspect. She had admitted to biting the child on the face, and burning him on his feet with cigarettes (she claimed accidentally); she was known for abusing her children. But she turned the tables on Manuel, and told the police that the child only started suffering various injuries — burns, bite marks, and bruises – when they had moved in with Manuel only two weeks before that fateful Halloween day. Before that, Moreno claimed, the child had no injuries. And before that, Manuel had been in Tennessee for weeks working construction.
By testifying against Manuel, Moreno escaped capital murder charges, and was able to plead guilty only to injury to a child with a 10-year sentence. She was out of prison in five years. Meanwhile, the state took Manuel to trial for capital murder.
The state’s case hinged not only on Moreno’s testimony but on medical experts who examined the child’s body and claimed there were no injuries older than two weeks. In particular, they focused on head injuries, including skull fractures. Again, this implicated Manuel, with whom the child and Moreno had been living for roughly two weeks. Manuel was convicted and sentenced to death in 2008. Moreno left prison in 2010.
The ACLU took Manuel Velez’s appeal to the Texas Court of Criminal Appeals, which found the state had relied on false testimony of a so-called “prison expert” to convince the jury to return a death sentence. The court appeared skeptical about the state’s ambiguous evidence of Manuel’s guilt, but left intact his capital murder conviction. The case would be sent back to the trial court for a new jury to determine if Manuel could again be sentenced to death.
In the meantime, a second appeal has now shown the medical evidence on which the state relied was faulty, and went unchallenged at the first trial due to the incompetence of his defense counsel, a lawyer with a known drinking problem. The appeal is supported by the affidavits of numerous experienced experts who examined Angel Moreno’s records and determined that his pediatrician, in 2005, had documented a ballooning of the head circumference – a telltale sign of head trauma – more than three months before his death. Consistent with those records, microscopic examination of the child’s skull fractures done as part of the autopsy process showed the fractures to be significantly older than the two weeks the state had claimed at trial. If that is true, then these were injuries that could not have been inflicted by Manuel Velez, who was not in the state of Texas at that time.
Today, I am en route to Brownsville, via the Houston area, where I will visit other clients on Texas’s death row, and where just a few years ago I first met Manuel Velez, an innocent man.
Starting tomorrow, a Brownsville District Court Judge will hold an evidentiary hearing on the new evidence of Manuel’s innocence, as well as the reasons his incompetent trial attorney failed to produce this evidence at trial.
If the judge agrees with the defense case, Manuel could become the 13th prisoner exonerated from Texas’s death row.
I will be on hand for the hearing this week, in support of Manuel and the attorneys handling his innocence hearing.