law enforcement jobs: Temmuz 2012

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A few items related to private prisons caught my eye recently that may interest Grits readers:

Antibiotics allegedly delayed in pneumonia death
The Dawson State Jail saw its eighth death since 2004, reported the Dallas CBS affiliate (via Texas Prison Bidness). "Her family says Ashleigh [Parks] had pneumonia and they believe her death could have been prevented if she had simply gotten antibiotics sooner. Their suspicions are based, in part, on letters they received from inmates at Dawson."

State changing treatment contractors
Meanwhile, TDCJ is changing contractors for drug treatment services at at least four state facilities from Community Education Centers to an entity called Gateway Foundation Inc., reported the Corpus Christi Caller Times. "The contract change affects 116 CEC positions at four prison units: Glossbrenner, the Halbert Unit in Burnet, the Kyle Correctional Center near Austin and the Sayle Unit near Breckenridge." CEC got the contract in 2009, so one wonders why the state felt the need to change contractors so soon. Gateway Foundation's website lists six other Texas facilities where they provide treatment services.

Geo Group wrongly took prisoner off suicide watch, lawsuit alleged
Also via Texas Prison Bidness, according to the SA Express News, "Relatives of an inmate who hanged himself at the privately run Central Texas Detention Facility [in downtown San Antonio] have sued Florida-based The GEO Group and its warden, alleging the federal prisoner was able to kill himself because he was wrongly taken off suicide watch in December 2011.

Analyst: Private prison companies "destined for destruction"
The Motley Fool asked, "Did the prison bubble just burst?," which is a question Grits has been pondering for more than a year. Wrote Justin Loiseau, "a critical look at the failings and financial fudging of these corporations reveals several reasons why this sector is destined for destruction." Read why.

'Brady violations' sometimes stem from police misconduct instead of prosecutors

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The Dallas Observer this week has its own analysis of prosecutorial misconduct in Texas innocence cases by Leslie Minora titled, "When innocent prisoners finally go free, their prosecutors do, too." As with the Texas Tribune's story today, it focuses mostly on anecdotes of prosecutor misconduct arising from Texas exonerations. Your correspondent was briefly quoted in the story:

"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."

One of the examples mentioned by Minora was Kerry Max Cook, who has not yet been formally exonerated but was unquestionably the victim of prosecutor misconduct. The story quoted from a 1996 Court of Criminal Appeals opinion declaring, "the State's misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State over a 14-year period — from the initial discovery proceedings in 1977 through the first trial in 1978 and continuing with the concealment of misconduct until 1992."

The Observer story also hones in on an underlying issue that's less frequently discussed - police withholding exculpatory evidence not just from the defense but from the prosecution team. "While police give prosecutors a thin file of relevant information, the complete, fat file stays in the department with documents that may be useful" or sometimes, exculpatory.

Prosecutors are obligated to hand over all exculpatory evidence and the courts consider "Brady" material any exculpatory evidence held by any government agent, not just what's in the prosecutor's file. When police fail to hand over exculpatory evidence, it will still be dubbed a "Brady violation" and hence prosecutorial misconduct in court, but in some cases the prosecutor may be unaware the evidence exists. Shannon Edmonds of the Texas District and County Attorneys Association recently told Grits that, according to an internal review, about half of Brady violations stem from prosecutors withholding evidence and the rest from police never giving the information to prosecutors in the first place.

Obviously Grits doesn't believe prosecutors should be sanctioned by the State Bar unless they knowingly withheld evidence. But since they rarely punish prosecutors, the much greater problem is that, even when knowing violations are committed - and even when they're acknowledged by appellate courts as in Kerry Max Cook's case - prosecutors still face no consequences. Edmonds' boss, Rob Kepple, told Minora he thinks the term prosecutorial misconduct is "used too broadly" to include mere mistakes. That may be true in some instances, but from an official perspective, Grits believes the State Bar in particular doesn't apply the term nearly often enough.

Man deemed incompetent held 20 years without trial for attempted murder, may be released

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Eric Dexheimer at the Austin Statesman brings an update on the case of Brad Reinke, a man deemed incompetent to stand trial for attempted murder of his father 20 years ago ("Mentally ill defendant up for release despite fears he could return to violence," July 7). Now that he's spent longer incarcerated in jail and state hospitals than his sentence would be if he'd been convicted, the Court of Criminal Appeals has ordered him released, leaving prosecutors scrambling to keep him incarcerated.

Here's the Court of Criminal Appeals ruling on the case, which was fairly narrow, simple and unanimous. They said that the law is clear Reinke must be released when he's been held as long as the max sentence for the crime for which he was to be tried. Travis County prosecutors argued that should be read to include any possible sentence enhancements based on past offenses, but the court held that those cases had already been adjudicated, and that the only case for which Reinke was "to be tried" was the attempted murder beef.

This circumstance highlights the flaws of treating the criminal justice system as the main access point for indigent mental health care. It's the old problem: When the only tool you have is a hammer, everything looks like a nail. The law allows for civil commitment if Reinke is still dangerous - and some still think he is - but his recent behavior record at the hospital has been good and may disqualify that option.

For 20 years Travis prosecutors have kicked this case down the road until now they can't anymore. Finding other options for Reinke outside the forensic mental health system has never been a priority to the state because they already had a justification for locking him up without a trial. But that was never a permanent solution, which has now become clear. If he's dumped from the jail to the streets after 20 years with little support or supervision, that's the worst possible outcome from his long-term legal limbo.

And yet, it makes little sense for him to take up a valuable forensic bed at a state hospital that could go to defendants who could actually be helped. And the Travis County Jail, where he's been for the last two years, is not designed to house or treat mentally ill patients long-term. Even if Travis County prosecutors had prevailed at Texas' highest criminal court, the status quo for Mr. Reinke was untenable.

Michelle Mallee, a Travis prosecutor specializing in mental health issues, said "It's just a real horrible Catch-22." Indeed it is, and I don't envy any of the decision-makers in the process. But it's a Catch-22 exacerbated by the fact that our laws view mentally ill people who commit crimes primarily through a prosecutorial lens, from dangerous cases like Reinke who harmed his family to the murderer who committed acts of terrible self-mutilation, but also the homeless schizophrenic drunk cycling in and out of the county jail 50-60 times per year. The definition of insanity in Texas law has little to do with ant clinical definition, but instead amounts to a legal justification for punishment despite insanity if the actor understood what they did was a crime.

Texas needs more state mental hospital beds for long-term inpatient treatment, but not just to accommodate a broken system. Those beds will only be meaningful if they're part of an expansion of lower-intensity supportive housing options, with on-site supervision, care and case management at the most intensive settings and less restrictive, less-intensely supported facilities for those who prove able to operate in that environment. Grits isn't suggesting Texas reconstruct the old apparatus of insane asylums, though in the near term I do think the Legislature should fund enough new inpatient beds to solve the short-term crisis. But Texas cities need long-term supportive housing (at various levels of restriction) and a more flexible controlling legal framework to manage this small but troublesome and extraordinarily expensive group of long-term mentally ill people. After all, even if a judge agrees to civil commitment, the law requires Reinke be placed in the least restrictive environment, so there's no guarantee he'll be locked up, certainly not forever. Without a more flexible array of placement options, calling it a "Catch-22" understates the conundrum.

There's a limit to the effectiveness of punishing the mentally ill without a trial, verdict or sentence, and in Brad Reinke's case the state just reached it.

SHSU crime lab abruptly shuttered, Fort Worth PD looks to re-open DNA section a decade after failures

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The loss of a new fee for service crime lab run by Sam Houston State in Montgromery County will put more pressure on the Department of Public Safety crime labs ad possibly add to their already too-long wait times. Reported the Conroe Courier:

The loss of the Sam Houston State University Regional Crime Lab, which opened in November 2010 in The Woodlands, will mean significant delays for results in testing evidence such as blood-alcohol and toxicology tests, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

The crime lab will lose its current home in September because the landlord has found another tenant, said Dr. Vincent Webb, dean of the College of Criminal Justice at SHSU in Huntsville and director of the university’s Criminal Justice Center. ...

With the loss of the SHSU crime lab – which serves more than 70 agencies – Montgomery County now will have to send tests to a Texas Department of Public Safety Regional Crime Lab in Austin, which serves many more clients, Diepraam said.“With the Regional Crime Lab, we got results in a week or two,” he said. “Unfortunately, the DPS lab has a backlog of cases. For drug toxicology tests, it could take six to nine months to get results. That’s a concern to the district attorney that we’ll have people staying in jail while we’re waiting on results.”

From November 2010 to October 2011, the Regional Crime Lab ran 1,034 drug toxicology tests, with 900 of those from Montgomery County, Diepraam previously said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

Conversely, the Fort Worth PD crime lab hopes to expand capacity in its lab for DNA work, reported the Star-Telegram, after shutting down a decade ago "amid backlogs and accusations of shoddy work and contamination."

The lab's two forensic scientists will begin working cases Monday, crime lab Director Tom Stimpson said Thursday. With the training of three other scientists at least six months away, Stimpson said, he hopes that the Police Department can stop outsourcing most DNA testing within a year.

"The benefit to the department for us really is going to be the turnaround time and the selection of what we can test," Stimpson said. "Now we're in full control of our evidence. We can test what we want and when we want it."

And the savings, he said, will be significant.

Grants cover some testing by the University of North Texas, but the Police Department must pay roughly $250,000 a year to Orchid Cellmark, a Dallas-based company, for other analyses, he said.

Putting a rush on a DNA order costs even more. "With Orchid, because they're a business, we were paying them a premium of about $500 a sample over and above what the regular cost was to have something done within a week or 15 days," Stimpson said.

An in-house DNA unit will also save money for the entire Police Department, because a faster turnaround can mean quicker arrests, he said.

Since Fort Worth was contracting with a private provider for DNA services, their new lab won't take any pressure off DPS' caseload, at least directly, but it will add to the state's overall lab capacity once it opens.

Read more here: http://www.star-telegram.com/2012/07/05/4081673/fort-worth-polices-crime-lab-preparing.html#storylink=cpy

What limits should exist on police use of personal cell-phone records without a warrant?

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Grits was admittedly surprised at how few wiretaps were being approved in Texas state courts, but I'll bet this news explains where Texas agencies are going for detailed information about suspect phone records. The story in the New York Times (July 8) opened:

In the first public accounting of its kind, cellphone carriers reported they responded to a startling 1.3 million demands for subscriber data last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The data, which come in response to a congressional inquiry, document an explosion in cellphone surveillance in the past five years, with wireless carriers turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

"I never expected it to be this massive," said Rep. Edward J. Markey, a Massachusetts Democrat who requested the data from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement's expanded use of cell tracking. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers' responses available to The Times.

Though the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across various levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

AT&T now responds to 230 emergency requests a day nationwide — triple the number it fielded in 2007, the company told Markey. Law enforcement requests of all kinds have been rising quickly among the other carriers as well, with annual increases of between 12 percent and 16 percent in the past five years. Sprint led the way last year, reporting more than 500,000 law enforcement requests for data.

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough. Moreover, rapid technological changes in cellphones have blurred the lines on what is legally required to get data — particularly the use of GPS systems to identify the location of cellphones.

The Wall Street Journal mentioned the particular concern regarding "cell tower dumps," which are "requests that carriers provide all the phone numbers of cell users that connect with a tower during a specific period of time. Those phone numbers could include suspects as well as ordinary people making calls in the same area."

At a minimum, Grits thinks cell phone users should be notified when law enforcement access their personal data without probable cause. And given their ubiquity and the amount of personal information on them, searches of seized smart phones should require a warrant. I've not thoroughly thought through, though, every nuance of what that would entail or what other protections may be necessary. Lately it seems like privacy advocates have been playing defense more often than not, fighting intrusive legislation instead of proposing new protections. There's been less discussion, that I hear, anyway, about what new protections are needed.

Written in the 18th century prior to the existence of municipal police forces, much less modern technology, the Fourth Amendment to the US Constitution offers flimsy protection at best from governmental (much less corporate) intrusions into personal privacy, which can be breached by technology much more rapidly, it seems, than the law can react to protect it.

The federal courts have all but abandoned the Fourth Amendment as a legal doctrine that meaningfully constrains government, which means in the near term we must rely - God help us - on the legislative branches, national and state, to limit abuses which would have seemed in the realm of science fiction back when today's Supreme Court justices were in law school. Unfortunately, legislative trends lately have run the other direction. (As the Journal reminded us, "In August 2007, Congress revised national-security surveillance statutes to allow the government to wiretap electronic communications without a warrant as long as one party is overseas.")

That puts the ball in state government's court, and leaves this writer wondering what legislation might (or should ) be filed at the Texas Legislature to restrict or at least document the nature and scope of law enforcement monitoring of personal phone records.

8 Temmuz 2012 Pazar

Poor training, low-quality certification and high error rates dog police canine units

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Via Simple Justice.

A couple of recent stories from out of state have brought drug sniffing dogs back into the news, as the US Supreme Court prepares to consider their use at people's homes without probable cause this fall.

Dog-sniff evidence is problematic because dogs can't be cross examined. There's wide variation in their accuracy, not to mention the quality and quantity of their training. And dogs naturally pay careful attention to cues from their handlers, creating a significant risk of false positives. Since no attorney will ever get a dog on the witness stand, the other elements (accuracy, training, and methods to avoid cues from the handler) have been critical to the creation of probable cause in previous court decisions. Unfortunately, the bar on all those measures is lowering rapidly.

Courts already accept dog "alerts" as a legitimate basis for a search, even when the dog regularly "alerts" where no contraband is found. In this story out of Roanoke Virginia, a dog name Bono found drugs "just 22 times out of 85 'alerts'," or 26% of the time, and yet a judge upheld the search. Arguing that the dog's performance was actually better than the statistics tended to show, prosecutors in Bono's case argued the dog should get credit for some "hits" that found no contraband, claiming that: "In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect." The judge accepted that argument, but even granting such a (highly dubious) premise, Bono's alerts were clearly mistaken half the time, and in another quarter of his hits he's detecting traces that did not actually indicate drugs were present. That fact undermines the US Supreme Court's past rulings (e.g., US v. Place) which upheld dog sniffs in part because they disclose "only the presence or absence of narcotics, a contraband item." In Bono's case, his "hits" mistook the absence of drugs for their presence nearly 3/4 of the time.

Detecting drugs that used to be in the location is not the same as detecting contraband presently in a suspect's possession. In Texas, Deputy Keith Pikett claimed his dogs could distinguish smells in "scent lineups" up to 17 years after the sample was gathered, so if you take that preposterous claim at face value (as many Texas prosecutors have) heaven knows how long the lingering odor of marijuana might trigger a "hit"? If I buy a car from a pothead and years later a cop runs a drug dog around it, will the dog still signal that marijuana is there? Should that constitute probable cause to search my car today? That's the logic of the Roanoke court.

The judge in Bono's case upheld the dog sniff as probable cause mainly because, while the dog "may not be a model of canine accuracy," police were justified in acting on it because of the "dog's training and flawless performance during re-certification sessions." Unfortunately, even flawless performance means different things to different agencies.

A case out of Florida which will be argued before the US Supreme Court this fall will determine whether drug-sniffing dogs may be used to glean probable cause outside someone's home without a warrant. The Florida Supreme Court's ruling being challenged by the state made the following argument to say mere certification was insufficient to demonstrate dogs' competence, because:

conditioning and certification programs vary widely in their methods, elements, and tolerances of failure. Consider, for example, the United States Customs Service regime:
The Customs Service puts its dog and handler teams through a rigorous twelve-week training course, where only half of the canines complete the training. Customs Service dogs are trained to disregard potential distractions such as food, harmless drugs, and residual scents. Agents present distractions during training, and reward the dogs when those diversions are ignored. The teams must complete a certification exam in which the dog and handler must detect marijuana, hashish, heroin, and cocaine in a variety of environments. This exam and the following annual recertifications must be completed perfectly, with no false alerts and no missed drugs. If a dog and handler team erroneously alerts, the team must undergo remedial training. If the team fails again, the team is disbanded, and the dog is permanently relieved from duty.

In contrast, the testimony below disclosedthat Razor and his handler had undergone just one initialthirty-day training course and one week-long annualrecertification course. In neither course was Razor conditionedto refrain from alerting to residual odors. Whereas the CustomsService will certify only dogs who achieve and maintain aperfect record, Razor's certification program accepted aseventy percent proficiency. These disparities demonstratethat simply characterizing a dog as "trained" and "certified"imparts scant information about what the dog has beenconditioned to do or not to do, or how successfully. (Emphasis in original, citations omitted.)

CBS News' 60 Minutes addressed the subject of low-quality training for sniffer dogs in a 2009 story:

"We don't have a set of standards," says Auburn University professor Larry Myers, one of the country's leading experts on canine detection programs.

He believes there is insufficient regulation and no universal tests for the dogs: "We honestly don't have a set curriculum. We've got to get everybody up to some minimal agreed level."

He also says there are good programs that turn out reliable dogs, but some produce dogs that make lots of mistakes -- and even tell lies.

"They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for," says Myers, who adds that canine programs are supposed to train dogs specifically to avoid that problems like that. "It is a tremendous problem. We have trainers that can't train. Dogs are being used that can't --don't know how to do anything."

Do trainers have to be licensed? "In some programs, yes. And in most programs, no," says Myers.

This means that poorly trained dogs and handlers are working in many parts of the country.

Meanwhile, Scott Greenfield at Simple Justice brings word of a drug-dog case from across the country in Nevada that should give everyone pause. Nevada state troopers have sued their superiors, alleging that:

the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.

The dogs were being trained to alert their handlers by cues, instead of by picking up a drug's scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.

Dogs naturally pay very carefully attention to their people. They've been doing so for millenia. In Nevada, troopers are accused of intentionally teaching the dogs to alert based on their cues. Which raises the question: How can any court ever determine whether a dog alerted to the smell of drugs, an intentional or unintentional cue from their handler, or for that matter the package steaks recently purchased by the suspect? As pointed out in a recent article from the National Association of Criminal Defense Lawyers' trade journal:

Dogs are not motivated in the same way as humans. Dogs have no interest in ridding the world of illegal drugs. Dog trainers, including police K-9 trainers, use treats, toys and praise to reward dogs when they do what they have been conditioned to do. If a police K-9 alerts, it gets a reward. K-9 handler/trainers know this, and the dogs quickly learn that an alert results in a reward in most instances, even if nothing is found.

Even if such cues are not intentional, the fact is that dogs seek to please their handler raises questions of inherent bias, particularly when the dog's "hit rate" is as low as Bono's above. As the NACDL article pointed out, "If law enforcement or magistrate judges, who are presumed to be impartial, were to be similarly incentivized, it would constitute violations of the Fourth, Fifth and Fourteenth Amendments." To the dog, after all, it's all just a game in which they want to find reason to alert in order to get a reward. To law enforcement and those targeted, though, it's not a game at all, even if federal jurisprudence on the subject has been mostly a joke.

Tribune finds prosector misconduct in nearly a quarter of Texas exonerations

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Interesting story from Brandi Grissom at the Texas Tribune; from the overview:

The Texas Tribune analyzed 86 overturned convictions [from the National Registry of Exonerations], finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.

Here's a notable tidbit:

Between 1989 and 2011, at least 86 Texas defendants including Loveless and Miller had their convictions overturned, according to the National Registry of Exonerations. In an extensive analysis of court rulings, news reports and pardon statements, The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome. The wrongfully convicted in those cases spent a combined total of more than 270 years in prison. (See an interactive presentation with details about all the cases.)

See related Grits posts:

What can the Texas Legislature do to reduce prosecutor misconduct?
Two suggestions, one radical, one modest, on prosecutorial reform
Did prosecutor misconduct shift balance of power to Dems in the US Senate?
Judge: Prosecutorial misconduct warrants new trial in 1997 capital murder case
Texas Monthly roundtable on innocence, punishing prosecutors
A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
State Bar should sanction prosecutor from Michael Morton case but almost certainly won't
Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?
Blackwell: Texas state bar 'not set up to oversee prosecutors'
Michael Morton, John Thompson highlight prosecutor misconduct forum
Study: Prosecutor misconduct in Texas rarely disciplined
Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight
Professor Jennifer Laurin previews forum on prosecutorial misconduct
Why aren't prosecutors held accountable when courts find knowing misconduct?
Eliminate judge-made immunity for prosecutor misconduct
SCOTUS seems indifferent to prosecutorial misconduct
Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
Prosecutorial hubris, entitlement, on display in recent cases
Improving prosecutorial accountability
What sanctions for prosecutors who cheat to win?

'Brady violations' sometimes stem from police misconduct instead of prosecutors

"The pendulum is at its very farthest point in its swing toward maximizing prosecutorial power," says Scott Henson, a policy advisor for the Innocence Project of Texas and the author of Grits for Breakfast, a Texas criminal-justice blog. "We're at the point where all these grants of power to prosecutors have started to create, basically, false positive errors in the system where we're falsely accusing people," he says. And all venues for remedy — the courts and the State Bar, basically — are "neutered and unable to deal with it."

Texas bucks national trend on state-level use of wiretaps: Feds do 98% of them

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According to The Crime Report, nationally "Wiretap applications were far more likely to go through state courts than federal courts in 2011." In Texas, though, the opposite is true: State judges approved just two wiretaps in Texas in 2011, according to the most recent data reported in the United States Courts 2011 Wiretapping Report: Both were in Travis County involving drug cases. (See here, p. 298, large pdf.) One of the two wiretaps in Travis cost $104,934 and resulted in 14 arrests. Costs for the other, which lasted 30 days, were not reported and no arrests attributed to it.

In contrast, by Grits' count federal judges approved 104 wiretaps in Texas during calendar year 2011, of which 102 were narcotics cases and two related to "corruption." About four in 10 (41) federal wiretaps in Texas resulted in arrests, but several involved dozens of people. The largest, out of Texas' Northern District, resulted in 41 drug convictions. Motions to suppress wiretap evidence succeeded just six times and were denied 16 times.

In all, federal authorities arrested 411 people in Texas in 2011 based on wiretaps resulting in 164 convictions, including 29 arrests and 21 convictions in corruption cases. (Data compiled from these tables, pp. 90-99, large pdf.)

I'm not sure why Texas judges are bucking the national trend of approving more wiretaps than the feds, but by these data the feds in Texas are making up quite a bit of the difference, particularly in the Western District on narcotics cases.

RELATED: Via TDCAA, see "A primer on wiretaps, pen registers and trap and trace devices," which provides a bit of additional process detail regarding state-level wiretaps. "Each of Texas’ nine judicial regions has a designated district court judge authorized to sign interception orders. Statutorily, our ability to seek a wiretap is limited to the offenses of capital murder, murder, child pornography, and felony drug offenses other than possession of marijuana," wrote Fort Bend ADA Jeff Strange in 2009.

The TDCAA article also give some interesting background on pen registers and trap and trace devices, use of which is not documented in the US Courts wiretap report:

A pen register or trap and trace device, unlike a wiretap, does not require a finding of probable cause. The application must simply state under oath that the installation and use of the device will likely produce information material to an ongoing investigation. The application must further identify the telephone subscriber and the relevant phone number and carrier. The application may be reviewed by a district court judge in the jurisdiction of the requesting agency, the location of the device, telephone subscriber, or communications carrier.

Should a pen register or trap and trace appear to be useful in an ongoing investigation, it is a good idea to seek the assistance of a local Texas Ranger or DPS investigator. Any peace officer may apply for a pen register, but the application must be filed by the appropriate elected prosecutor unless the requesting peace officer is employed by the Texas Department of Public Safety or is “commissioned by the department.”

Not only does a pen register show outgoing and incoming phone numbers, but if tracking a cellular phone, it also identifies the cellular antenna and sector that the cell phone is using at the beginning and end of the call. Thus, a pen register has some utility tracking people, usually people with warrants for their arrest. A pen register is also a good source of investigative intelligence. If a known suspect and his phone are identified, a pen register can provide the identities of potential co-conspirators. After a completed crime, if a known suspect is on the run, a pen register helps identify potential destinations, allowing police to prepare a warm welcome for the wayward crook.

Like wiretaps, pen registers and trap and trace devices can be installed on an emergency basis, again, allowing officers to obtain verbal authorization and file the appropriate application within 48 hours.

Snitching here, there and yon

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Grits wanted to point out several compelling items related to confidential informants, including issues related to using juveniles as snitches, for readers who don't happen to follow Prof. Alexandra Natapoff's Snitching blog.

First, the New York Times Magazine ran an item last week titled "A Snitch's Dilemma," also publishing an interview with the reporter who wrote the extensive story. The feature focused on Alex White, an informant, drug dealer and hustler in Atlanta who outed several crooked cops (three went to prison) in order to protect himself after a drug raid on the wrong house resulted in police shooting a 92-year old woman named Kathryn Johnston, after which police planted marijuana in her house. Radley Balko, who followed the case closely when it happened, has a good discussion of new revelations in the article. See additional, recent coverage of the case from the Tallahassee Democrat.

Also, earlier this year the Miami New Times ran a three part feature (here, here, and here) about Bosco Enriquez, a former juvenile gang member whose cooperation with police resulted in his being beaten with baseball bats and later raped while in federal custody before being deported. Opined the reporter, "I have spent the past two months combing through mountains of dusty court files that document Enriquez's case, as well as the personnel file of Serralta, the officer who recruited the boy. The result is an outrage. Local educators and police, as well as federal immigration authorities, failed this kid. Cops both in Miami and across the nation need more oversight when they use children to snitch. The current system stinks."

Commenting on Enriquez's story, Prof. Natapoff wrote, "Juvenile informants often incur terrible risks with little or no protection from the legal system. For an indepth look at the phenomenon, see Andrea Dennis, "Collateral Damage? Juvenile Snitches in America's Wars on Drugs, Crime and Gangs," 46 Am. Crim. L. Rev. 1145 (2009)."

Natapoff also recently pointed out another academic article focused on a watered-down reform law in Florida, dubbed Rachel's law after a murdered informant, arguing that the central provisions eliminated before passage gutted the heart of the much-ballyhooed reform measure. "The Boston College Journal of Law & Social Justice has published this note, Toward Efficiency and Equity in Law Enforcement: 'Rachel's Law' and the Protection of Drug Informants. It focuses on an important provision in Rachel's Law that was eliminated, that would have required police to provide potential informants with counsel." See earlier Grits coverage of the measure.

7 Temmuz 2012 Cumartesi

Healthcare law and the Court's guiding principles

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NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. | Supreme Court | LII / Legal Information Institute

The Chief Justice did an admirable job of producing a decision in the healthcare act. One is better served by reading the court's decisions themselves rather than look to news pundits' interpretation. This case reflects an excellent example of decision writing.

Court decisions, certainly those above the first level courts, contain rationales for their decisions. Precedents are followed. Opinions are justified based upon other relevant authorities. Thus, decisions are not one off. And I submit that, for the most part, this process of decision making tends to eliminate personal political expressions.

Here are some excerpts from the first portion of the opinion by the Chief Justice. Citations are omitted. What the Chief Justice does is to set out the role of the Court in relation to Congress and Executive Branch. It establishes a framework.

"We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

"The Federal Government “is acknowledged by all to be one of enumerated powers.” That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government’s powers."

"Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy."

"This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power. The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”"

"Congress may also “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”"

"Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control."

"And in exercising its spending power, Congress may offer funds to the States, and may condition those offers on compliance with specified conditions."

"Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”"

My favorite, especially the last sentence:

"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

"Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”

Food for thought from Chief Justice Roberts

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"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices." [NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.].

China: Child trafficking gangs

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It really matters not where on the globe - greed, inhumanity and criminality exists. But, China is a place one might believe would be controlled enough that child trafficking gangs would not exist. [See Chinese police 'smash' trafficking gangs, frees 181].

The article offers the suggestion that the fault is China's "one-child policy and lax adoption laws." But that ignores that it isn't government policy that created those trafficking in children. Humans everyone have this capacity to be immoral and inhumane.

However, it is just as easy to suggest that "[g]reater freedom of movement as a result of China's economic reforms is thought to have also made it easier for trafficking gangs to operate."

Justice delayed: Jorge Rafael Videla convicted of baby thefts

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"A total of 500 babies are believed to have been handed over to military families after their mothers were murdered by the dictatorship. So far, 105 of them, now all in their 30s, have been identified through DNA tests and united with their blood families through the efforts of the Grandmothers of Plaza de Mayo, an association formed over three decades ago by the mothers of the missing women whose babies were stolen." [Jorge Rafael Videla convicted of baby thefts].

One cannot disabuse the US of its role in this and other human rights violations occurring in Argentina. See Pentagon and CIA Sent Mixed Message to Argentine Military.

Myth? Mankind's contribution to climate change

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A read of the news media would have one believe that humans are the cause of climate change, or global warming. It seems common sense though that human activities play a role, but it seems common sense too that humans are not the only cause nor even the primary cause.

Global warming advocates seem to ignore other factors that also may be playing a role. E.g., "[n]ew research suggests that assessments of climate variability should take volcanic activity into account." [Can small volcanic eruptions affect global climate?].

Climate change seems incontrovertible, but its causes are at issue. Rightfully or wrongfully - climate change advocates have failed to buttress their arguments with evidence, thus, failing to garner the political support they need.

When scientists can't predict earthquakes, volcano eruptions, or even the weather - it is difficult to drink the Kool-Aid. [Oddly another myth - it wasn't Kool-Aid but Flavor Aid.]

5 Temmuz 2012 Perşembe

George W. Bush in Zambia not taking any crap

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Zambian Watchdog media

Three cheers for George W. First, I never thought I would read that "[f]ormer U.S. President George W. Bush was this week in Zambia to promote cervical cancer detection and treatment programs for women . . . ." [Zambia Watchdog].

Nor would I ever expect to see a picture, a la President Carter, of George W actually painting a clinic.

Best yet - he didn't take any crap from Zambia's president Sata who called George W and the US colonists.

Bush deserves credit for his behavior out of office. He has maintained a rather low profile. Arguably he is more presidential out of office than in.

Don't wait until Monday to find out your computer will not access the Net

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It is an old story beginning about a year ago when the actual infection occurred. Without running a check you will not know if a computer is infected until Monday when Internet access is attempted. The Washington Post has the whole story.

Apparently there are only about 64,000 USA computers likely infected, but while the odds are in your favor - it only takes a click on a link to run the check. Better safe than sorry comes to mind.

The FBI's sort of white knight role is intriguing.

What if they had been better shots

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This from the Portland police Press Release: [some editing for brevity.]

"Officers arrived and learned that a group of people, including 5-6 children under the age of 10 years old were on the corner lighting off fireworks. While lighting/watching the fireworks, a vehicle occupied by at least 3 African American males, drove by and fired multiple shots at the group.

An adult woman was shot and she was transported to an area hospital with what are believed to be life threatening injuries. There is no update on here condition at this time.

The shooters drove off westbound on Fessenden. Officers also learned that a subject from the group watching fireworks, returned fire as the vehicle drove off. That subject then ran off northbound on Fiske and has not been identified at this time."

The difference between a too often routine report about gang shooting and a terrible tragedy is luck - luck that the shooter(s) failed to hit the children. The headline could have been "5 children shot and killed in a drive by." Fortunately the adult that was hit was not seriously harmed. Luck again.

What kind of people fire at children? Total disregard for life is only the beginning of the story.

UK scandals - now it is the banking industry

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One would have thought that the Rupert Murdock newspapers' hacking scandal would be a one off scandal - but no there is apparently a banking scandal involving Barclays and others in the UK banking industry including the Bank of England. Greed is universal.

Here are two stories worth the read:

Rigged bank rates: Is there more to come? - Inside Story - Al Jazeera English:

Daily chart: Don't bank on it | The Economist

Oregon Sustainability Center a failure in accountability and transparency

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Despite claims of transparency and accountability - Portland is neither. An example is found in the Oregon Sustainability Center where the politicos will whatever it takes (legally so far) to avoid being either transparent or accountable.

Via public records request the Oregonian received redacted emails - redacted because the portions were advisory - so the city claimed. However, the Oregonian's Beth Slovic with the emails and other documents was able to tease out some significant concerns.

E.g., there is a concern "about the city's using debt secured by the general fund to benefit private parties -- something that's prohibited by the Oregon Constitution." [Link in original text; see Section 9 in Constitution.]

law enforcement jobs

11 Temmuz 2012 Çarşamba

Chadds Ford Man Pleads Guilty to Reckless Runway Ride

Ryan Grace Sentenced to 15 Years in Prison and Lifetime Supervised Release for Traveling Across State Lines to Engage in Illicit Sexual Conduct with a Minor

CBP Officers at Laredo Port of Entry Detect Nine Immigration Violations in 24 Hours on America’s Birthday

Formal Charges, New Allegations Announced After Investigation of Indiana Man in Sextortion Scheme

Two Individuals Sentenced to Prison for Participating in Kickback Scheme at New York Presbyterian Hospital

10 Temmuz 2012 Salı

The Biblio Brat

How to Choose Law Enforcement Careers