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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Day 2 of Velez Hearing: State’s Witness Dismantles State’s Timeline Theory

By Brian Stull, ACLU Capital Punishment Project at 11:22am

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.

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Day 1 of Velez Innocence Hearing: A Family Comes to Court for Justice

By Brian Stull, ACLU Capital Punishment Project at 12:34pm

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.

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Could Manuel Valez be the 13th Prisoner Exonerated from the Texas’s Death Row?

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.

I will provide updates on this blog throughout the week.

Drug testing #TANF applicants is wrong. Here’s why!

By Terri Burke
Executive Director

A few days ago we posted our response on Facebook to a proposed law that would require drug testing of applicants for Temporary Assistance of Needy Families (TANF), which was endorsed by Gov. Perry and Lt. Gov. Dewherst. Our post drew a number of very spirited replies from supporters and non-supporters. To those who commented, thank you all for writing. Let me respond to some of your comments to emphasize a few points:


Halyi, There is no evidence welfare recipients use drugs at a higher rate than the rest of the population. When Florida tried this, over the 4 month period before the courts shut them down, the state lost $45,000 and discovered only 2.6 percent of the folks tested positive for drugs.

Jonathan, this drug test will only identify drug “use” not abuse. However much some of us may deplore any drug use, there is a difference between use and abuse. Moreover, the constitutional questions raised by mandatory government testing are far more problematic than testing by a private employer. This represents serious government overreach.

Robert, children of the occasional marijuana smoker are surely better off with that parent than being thrown into the Child Protective Services system (I don’t know where you live but search www.chron.com for some very scary stories about that if you haven’t seen them).

Johnathan, the average TANF monthly check is about $200, according to Gov. Perry. I don’t know much about drugs, but I doubt that buys very many.

Keilah, if you buy the argument that the taxpayers have a right to demand that those who receive taxpayer dollars be drug tested, then why aren’t we demanding drug testing of all the veterans, the senior citizens who receive Medicare and Social Security, farmers who get government subsidies, entrepreneurs who receive Texas Enterprise Funds from the governor’s office, and so on. My point is quite simple: we are making poverty a crime. We are going to drug test a group of people who differ from these others only because they may be poorer, they may be black, they may be brown – not because they are drug users.

I’m sorry we disagree on this but I hope you will continue to comment on our Facebook posts, receive our emails, and continue to challenge us when you think we should be. It is only through these dialogues that we get a better sense of the thinking of all Texans.

Building a new life

By Dione Friends
Online Media Coordinator

Being released from prison isn’t just about being free. Former inmates face serious obstacles to rejoining society as productive members.

Mental health issues, lack of education, and minimal work experience are huge barriers on the path to a “normal life.” The latest national data indicates that about two-thirds of released prisoners are arrested within three years.

The transition from prison to home just got a little easier thanks to our coalition partners at the Texas Criminal Justice Coalition. Their new website features resources for youth and adults seeking to rebuild their lives.

Housing services, legal clinics, employment services, educations assistance, and other services are only a few clicks away with this new tool. See the website in action by double clicking the video below to watch it full screen. Or try it out for yourself.

Please note that by playing this clip YouTube and Google will place a long-term cookie on your computer. Please see YouTube’s privacy statement on their website and Google’s privacy statement on theirs to learn more. To view the ACLU of Texas’ privacy statement, click here.

The Texas Criminal Justice Coalition works on issues across Texas’ criminal and juvenile justice systems to create stronger families, less taxpayer waste, and safer communities

Criminal law reform is a priority of the ACLU of Texas. We seek to end excessively harsh criminal justice policies that result in mass incarceration and stand in the way of a just and equal society. Learn more about our campaign goals by visiting criminaljusticetx.org.

Follow our criminal law reform campaign on facebook and twitter.

Growing Up Locked Down

Read the Growing Up Locked Down report

The ACLU and Human Rights Watch recently released the report Growing Up Locked Down which looks at the practice of placing youth in solitary confinement (22-23 hours a day isolated from human contact in a small cell).  The report outlines a myriad of concerns associated with this practice.

Holding youth in solitary confinement causes psychological, physical harm, and social and developmental harm.  Isolated youth exhibit mental health issues such as increased risk of suicide, self harm, and exacerbation of existing mental health issues.  Youth held in this form of confinement also rarely receive the kind of exercise necessary for a normal young person leading to physical harm.  Finally, youth in solitary confinement often do not have significant contact with family members, do not have meaningful educational services, and rarely receive counseling and other basic services.  This problem is particularly dramatic for youth with intellectual disabilities or mental health issues.  The report recommends a number of reforms to address this litany of issues, but in general this practice simply should be used minimally or never.

In Texas, youth are placed in solitary confinement in the following settings:

  • County (adult) jails
  • State run juvenile facilities
  • County run juvenile facilities
  • Juveniles certified as adults may be placed in solitary while incarcerated in state prison facilities

In each of these settings, youth face the same risks of harm identified in the national report.  In some cases, for example youth housed in county jails awaiting trial, the youth awaiting trial are placed in solitary confinement without a criminal conviction.  In county jails, youth are placed in solitary confinement to protect the youth from the adult population in these facilities, but ironically this protective placement causes many other problems.

To address these issues in Texas, the ACLU of Texas is asking legislators to support two important reforms.  First, the ACLU of Texas along with a number of partner organizations is working to end the use of solitary confinement as punishment.  Solitary confinement has such a negative impact on youth, it should only be used in emergency or dangerous situations for short stints of time.  It should not be a punishment for failing to clean one’s cell or having contraband reading material.

Second, we are asking legislators to create basic review for any youth placed in solitary confinement.  Drawing on the example of West Virginia, we have recommended that legislators pass a bill requiring the following:

  • Any facility that houses youth in solitary confinement must create an oversight committee or an Administrative Segregation Committee
  • An Administrative Segregation Committee will include at least one medical professional (either a mental health or medical expert)
  • The Committee will review initial placement of all youth placed in solitary confinement in the facility
  • The Committee will continue to regularly review the placement of the youth for the duration of placement
  • The Committee will create a Behavior Improvement Plan for the youth which provides a graduated return of privileges and a roadmap for the youth to leave solitary confinement and return to a less isolated setting

The negative impact of solitary confinement, the human toll of this suffering, and the practical impact on recidivism rates of mishandling our wayward youth all argue for reforms to the use of solitary confinement.  Ultimately, almost all youthful offenders will return to our communities and it is in our collective interest to ensure that they receive the kind of treatment and services that allow for success.  Tell your local newspaper we cannot afford the lost lives or the increased prison population that is caused by overusing solitary confinement.

Call for change at the Texas Legislature

By Matthew Simpson
Policy Strategist

Parents and community members will have an opportunity to advocate for students at the Texas Legislature later this month. On Oct. 30, 2012, the Senate Criminal Justice Committee will hear testimony on a variety of issues facing students in our public schools.  These are the topics the committee will address:

Alternative Education Programs

The committee will look at Disciplinary Alternative Education Programs (DAEPs) and Juvenile Justice Alternative Education Programs (JJAEPs).  Students are placed in DAEPs and JJAEPs when they are removed from the classroom. DAEPs are a part of school districts whereas JJAEPs are run by county juvenile justice boards.  Advocates have expressed concerns about the quality of the education provided in DAEPs and JJAEPs. There are also alternative approaches to discipline that allow students to remain in a normal classroom setting that can actually produce better outcomes.

Racial Inequity in School Discipline

Second, the committee will review research that highlights racial inequity in suspension, expulsion, and tickets at school.  Organizations like Texas Appleseed and the Council of State Governments Justice Center have found African-American and Latino students are more likely to be ticketed at school, expelled, and suspended.  Special education students are also disproportionately represented in statewide studies.  These trends raise troubling concerns about the way students are disciplined across Texas.

Zero Tolerance, Alternative Schools, and Student Ticketing

Third, the committee will consider how zero tolerance policies, separate alternative education campuses, and law enforcement in schools have become problematic in Texas.  Zero tolerance policies require harsh disciplinary responses like suspension and expulsion when certain rules or laws are broken.  The policies are  widely considered a failure because they tie the hands of administrators.  Even conservative groups like the Texas Public Policy Foundation are voicing concerns about this approach to school discipline.  Another critical issue is the overzealous use of ticketing by law enforcement in school.  Over 275,000 tickets are issued to students in schools EACH YEAR in Texas.  Expulsion, ticketing, and suspension undermine school success and ultimately undermine the chances of any individual student graduating.  It is essential that we address our high dropout rates as we move toward an ever more sophisticated workforce and economy. We can start improving student success by making basic reforms to suspension and ticketing policies.

Children in the Foster Care System

Fourth, the committee will look at how foster children fair in school and in the juvenile justice system.  The committee will likely look at ways to improve case management and information sharing so that youth receive appropriate services.

Alternative Discipline Models

Finally, the committee will look at “[e]vidence-based models used for addressing juvenile delinquency prevention that are targeted to non-adjudicated, but at-risk youth, in the school disciplinary system.”  Positive Behavioral Intervention and Supports (PBIS) is one school discipline model that helps keep students in school and out of the juvenile justice system.. PBIS is a good alternative because it allows a school-wide approach to school discipline that focuses on prevention rather than simply relying on punishment. Graduated Sanctions is another alternative model.  This approach creates disciplinary consequences of growing seriousness with each infraction. Tickets or suspensions are used as last resort measures.

The good news is that state legislators want to improve how we handle discipline at school and are ready to listen to suggestions. We, as parents, students, and Texas residents, have the opportunity to weigh in at this hearing and in the future as these issues continue to be discussed.

Want to get involved?  Here’s how you can take action:

John Balentine: The Importance of Mitigating Evidence and Competent Representation

By Nimrah Siddiqui
ACLU of Texas Volunteer

Americans expect that they will not be found guilty without a fair trial. A similar principle applies to sentencing of individuals found guilty of a capital offense which, according to our laws, includes the opportunity to provide evidence that the death penalty is too harsh in the circumstances of their case. On August 22, 2012 the U.S. Supreme Court stopped the execution of John Balentine for precisely this reason. The cancellation came just one hour before his execution was set to take place.

Balentine’s lawyer, Lydia Brandt, has argued that extenuating conditions in his childhood, such as violence and delayed emotional development, were not considered when the district court of Potter County handed him the death penalty. According to Brandt, Balentine’s lawyers in his original trial and early appeals failed to present evidence that could have persuaded jurors to give him a life sentence. Brandt cited a recent court ruling from Arizona regarding the issue of ineffective counsel, Martinez v. Ryan, to request a review of his case.

There are two phases in the death penalty trial. First, the jury decides whether the defendant is guilty. If the jury finds the defendant guilty, then the jury decides the punishment. This is called the sentencing phase. In the sentencing phase, attorneys can present mitigating evidence to prove that the defendant should not have to face the death penalty. The majority of death penalty cases involve defendants who have experienced extraordinary circumstances, such as traumatic life experiences or intellectual disabilities, that sometimes convince jurors the death penalty isn’t deserved.

While the system allows for the presentation and consideration of mitigating evidence, the system is also plagued by “randomness” and wantonness, according to a 2011 report from the Death Penalty Information Center (DPIC). The report looks at how capital cases are arbitrarily assessed and reveals how factors other than the severity of the crime or the guilt of the criminal can influence the decision to use the death penalty.

Ineffective legal representation often plays a role in death penalty cases, as well. In many cases, defendants who are unable to pay are represented by inexperienced or over-burdened attorneys. The DPIC has compiled a long list of cases in which the competency of the lawyer or the right to an attorney is at issue.

The Texas Defender Service is an organization that works toward access to competent defense and ensuring a fair criminal justice system in Texas. There current cases of interest include Duane Buck, Marcus Druery, Yokamon Hearn, Ricky Kerr, and Scott Panetti.

John Balentine was the fifth prisoner on Texas’ death row to receive a stay of execution in 2012. There are nine more executions scheduled this year, with two scheduled in September. Robert Harris is scheduled to be executed September 20th, and Cleve Foster is scheduled for execution September 25th.

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.