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Jeff Blackburn

While we wait for a ruling in the Rick Perry case

This story about a group of big-name lawyers filing a brief in support of Rick Perry’s motion to dismiss the charges against him ran a week ago. I put off writing about it because it looked like we might get a ruling on the motions from Judge Bert Richardson, but since he’s still thinking about it I figured I’d go ahead and finish what I’d started to write. I have what you might call a stylistic beef with the story as well as a substantive disagreement with the argument these gentlemen have put forward.

Corndogs make bad news go down easier

This corndog will not be silenced

A bipartisan group of lawyers and legal scholars is asking a judge to dismiss a criminal indictment against Gov. Rick Perry, arguing their objections to the case transcend politics.

“We have no personal or political stake in this case,” said James Ho, a Dallas lawyer who helped organize an amicus brief filed Monday morning. “We come from different political backgrounds. But Republican or Democrat, conservative or liberal, what unites us is our commitment to the Constitution, and our belief that this prosecution is profoundly mistaken.”

[…]

The brief filed Monday concludes the “prosecution must end immediately,” calling it “disturbing” that Perry could be indicted for actions he took during a political dispute. The groups cite a few examples of politicians using threats to work their will without facing the same consequences Perry has, most recently President Barack Obama telling congressional Republicans he’d issue an executive order on immigration reform if they didn’t act.

The 24-page brief has the backing of legal experts with Democratic backgrounds such as Jeff Blackburn, founder of the Texas Innocence Project; Paul Coggins, former U.S. attorney in Dallas; and Harvard Law professor Alan Dershowitz, whose skeptical remarks shortly after the indictment were used by Perry to argue even his political opponents think the case is bogus. Republicans on the brief include former U.S. solicitors general Ted Olson and Ken Starr, who now leads Baylor University.

See Texas Politics for more. The stylistic grievance I have is with the description of this group as “bipartisan”, since the term is being used to plant the idea that “see, even Democrats think the case against Rick Perry is bogus”. Look at the names highlighted in the story. One one side, you have three high profile professional Republicans – Ted Olson and Kenneth Starr, both former Solicitors General in Republican administrations, plus James Ho, a former Solicitor General for Texas under Rick Perry. On the “Democratic” side, you have one former US Attorney who – with all due respect – no one who doesn’t already know him has heard of, and two high-profile people that aren’t Democrats in a meaningful sense. Neither Alan Dershowitz now Jeff Blackburn has worked professionally for a Democratic administration or organization as far as I could tell by looking at their bios online. Dershowitz is an outspoken and often controversial academic whose stated beliefs are iconoclastic and not easily pigeon-holed into a left/right dichotomy. Blackburn heads up a well-respected non-profit that by its nature works closely with Democrats and Republicans. Folks in the criminal justice reform business tend to be single-issue focused and will gladly work with whoever supports them – see, for example, this recent Observer story and the remarks within it by Ana Yáñez-Correa, head of the Texas Criminal Justice Coalition, which include a warm endorsement of the newest Republican State Senator, Charles (no relation to Rick) Perry. Take these two “Democrats” out and you’re left with a group of mostly powerful Republicans standing in support of Rick Perry. There may or may not be merit to what they’re saying, but as a story it’s a lot less sexy this way.

As for my substantive objection, comparing Perry’s action to the standoff over immigration and a threatened executive order on DACA is so laughable I have to wonder if any of these high-profile signatories are even familiar with the case at hand. What this case is about is very simple: An elected official may not use the power of his or her office to try to coerce the resignation of another elected official. It’s not in dispute that this is what Rick Perry did. His defense boils down to 1) the laws that he is charged with violating were not intended for this use and are not applicable in this instance, and 2) he has a First Amendment right to make the kind of veto threats that he made. There may well be merit to point #1 – I have seen attorneys of the Democratic persuasion take pause with this. I’m not qualified to assess the legal fine points, but I recognize that Mike McCrum is tilling a new furrow here. Of course, Rick Perry did something no one had done before, too, so we’ll leave that up to Judge Richardson. As for the First Amendment argument, I claim no expertise but it seems to me that the exception being carved out here is narrow and well-defined. I see a bright line, not a slippery slope. Your mileage may vary, and so may the judge’s. If that’s the case, then so be it. I’m just not impressed by the smoke that these attorneys are trying to blow my way.

Finally, there’s a partisan question, raised in the comments here. Would I be so supportive of this prosecution if I didn’t have such a hearty dislike for Rick Perry? It’s always hard to objectively evaluate one’s own biases, and the partisan contours of this dispute were evident from the beginning, which makes it more difficult. But here’s a thought experiment to consider. We just elected ourselves an Attorney General that has some legal baggage of his own, including a criminal complaint, an SEC complaint, and a state bar grievance. It is possible that in the near future Ken Paxton could be in even more hot water than Rosemary Lehmburg once was. Now imagine that the gubernatorial election had turned out differently. How would you feel if Governor Wendy Davis was threatening to veto some piece of funding to the AG’s office unless Paxton stepped down? I would suggest that how you feel about that and how you feel about the Perry indictment should be about the same. If they’re not the same – in particular, if the way you feel about one is the polar opposite of how you feel about the other – that may mean you’re letting partisan feelings cloud your judgment. Just something to think about.

Jefferson pushes for judicial reforms

Most of what Texas Supreme Court Chief Justice Wallace Jefferson had to say to the Lege during his biennial address was good stuff that I hope the Lege will heed.

Wallace Jefferson

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free” and recommended the Legislature create a commission “to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms.” He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system.”

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Jefferson also pushed for indigent defense and more money for civil legal aid. “We must do more,” he said, “to keep the courthouse doors open for all of our neighbors.” He called on lawmakers to increase the amount of funding dedicated to organizations that provide indigent civil legal aid and criminal defense.

Jefferson touted reforms in creating an electronic filing system to lessen the use of paper in courts statewide. “Our courts operate much like they did in 1891,” he said, “with paper, stamps on paper, cabinets for paper, staples, storage, shredding of paper.” He backed Senate Bill 1146, by state Sens. Royce West, D-Dallas, and Robert Duncan, R-Lubbock, to decrease the cost of electronic filing, which he called “a key to ensuring access to our judicial system.

“The era of big paper is over,” he said, prompting laughs and applause from lawmakers.

Finally, Jefferson announced the creation of a special committee of the Texas Judicial Council to look at reforming the state’s guardianship system, in which court appointees make decisions and manage the interests of incapacitated individuals. “An exploding elderly population will stress the guardianship system,” he said. “We must begin to address these issues and prepare.” Currently, he said, Texas has 368 state-certified guardians handling 5,000 guardianships. The number of individuals needing guardianship, he said, is 40,000.

The Statesman has more:

Jefferson also criticized the practice of writing Class C misdemeanor tickets for disruptive conduct in Texas schools, forcing children to answer the charge in court and leaving some, particularly those who cannot afford a lawyer, vulnerable to arrest and a criminal record.

About 300,000 such tickets are written each year, he said.

“We are criminalizing our children for nonviolent offenses,” Jefferson said. “We must keep our children in school, and out of our courts, to give them the opportunity to follow a path of success, not a path toward prison.”

Bills that have been filed to address these concerns are SBs 393, 394, and 395, all by Sen. Royce West. Everything mentioned here by Justice Jefferson is something I support. My only complaint is this:

Another regular feature of these speeches is a call for lawmakers to revisit the way judges are selected. Currently, the judges are elected in partisan contests. “A justice system based on Democratic or Republican judging is a system that cannot be trusted,” Jefferson said during his last speech before the Legislature.

This session, several bills aim to address this issue. State Sen. Dan Patrick, R-Houston, has filed SB 103, which would end straight-ticket voting in judicial elections, where a single selection of Democrat or Republican at the top of the ballot carries through elections for all offices, including judges. Two years ago, Jefferson explicitly called for this policy change, saying straight-ticket voting led to “hordes of judges replaced for no good reason.”

*sigh* You know how I feel about this, so I’ll spare you another rant. Let’s just say I hope the rest of Justice Jefferson’s agenda gets a higher priority from the Lege than this does. Grits and EoW have more.

Arson review moving forward

Good.

A long-awaited review of old Texas arson cases — an unprecedented search for wrongful convictions based on bad fire investigation science — is picking up speed and will probably produce the first results in January, participants said [last] Friday.

One suspect case has been identified and about 26 others are being scrutinized for evidence that investigators relied on now-discredited “myths,” instead of science, to determine that the fires were intentionally set, said Nick Vilbas with the Innocence Project of Texas, which is leading the review.

“We hope to be done pretty soon,” Vilbas told the Texas Forensic Science Commission during Friday’s meeting in Austin.

A panel of fire experts, assembled by new Texas Fire Marshal Chris Connealy, is scheduled to hear details of the first batch of suspect cases in January. Their findings would help determine how each case should proceed in the criminal justice system, Connealy said.

The Star-Telegram provides more details.

“We’re looking at four or five cases,” said Jeff Blackburn, chief counsel for the Innocence Project of Texas. “Those are going to be looked at hard.”

Blackburn is scheduled to appear before the Texas Forensic Science Commission in Austin to report on a records examination of hundreds of arson convictions. The effort is aimed at finding examples of junk science similar to that used to convict Cameron Todd Willingham of killing his three daughters, which resulted in a controversial review by the commission. Willingham was executed in 2004.

Blackburn says one or more of the new cases may involve inmates from North Texas.

At the request of the state’s top forensic panel, the Texas Innocence Project reviewed 1,025 arson-related crimes in Texas from recent years, and concluded that most don’t involve questionable evidence. A small number, maybe a half dozen, may have used scientific processes now deemed to be faulty, Blackburn said.

Blackburn’s work, commission members have said, is expected to send a clear message to fire investigators on the proper protocols for handling arson-related cases.

This has been a very long time in coming – it was two years ago that the Forensic Science Commission agreed to this review, and I think we know how much went on before we got to that point. It’s not a lot of cases to review, but they all sure matter to the possibly innocent convict who’s been in jail for it for however many years. I’ll be interested to see how the prosecutors of these cases react, given how resistant the Willingham prosecutor (among others) have been to this kind of review. Grits has more.

It’s still hard to free an innocent person

No surprise, right?

While some appellate attorneys are applauding Harris County District Attorney Pat Lykos’ establishment of a Post Conviction Review Section, whose work led to the freedom of two wrongfully convicted men in the past week, Texas law continues to make it difficult for inmates appealing convictions to be heard in court. The Texas Court of Criminal Appeals remains unfriendly to innocence claims, said Jeff Blackburn, chief counsel for The Innocence Project of Texas.

“I’m convinced there are thousands of people in the Texas Department of Criminal Justice that are innocent and need to get out,” Blackburn said. “But getting them out is very, very difficult.”

Lykos broke ranks with other district attorneys in Texas when she took office in January 2009 by establishing a team dedicated to reviewing cases in which people may have been wrongfully convicted – a move that has changed Harris County’s judicial climate, Blackburn said. The Dallas County District Attorney’s Office has a similar division focused on reviewing possible wrongful convictions in their jurisdiction.

“Harris County was light-years behind everybody else – now it’s light-years ahead of everyone else,” Blackburn said. “I think (Lykos) has brought about a sea change in attitude and perspective for that office. I wish every DA in the state would do what she has proven herself capable of doing in these cases. It’s something that requires a lot of moral authority and a lot of courage.

“We’re still facing counties that will resist the ideas of even DNA tests,” Blackburn said. “That’s crazy to me. If you’ve got biological evidence, why not test it?”

First, kudos to Pat Lykos for establishing that Post Conviction Review Section, which was long overdue here. It’s a big step forward. With the two largest counties in the state now setting that kind of example, one would hope that there will be pressure on others to follow suit. It won’t be quick and it won’t be easy, and most likely it will take a combination of legislative action and reform-minded candidates ousting recalcitrant incumbents for real progress to be made, but I believe that eventually this will be the standard, and the resistance that Blackburn speaks of will be rightly seen as obsolete.

Lawsuit filed over dog scent evidence

Three men have filed a federal lawsuit against Fort Bend Deputy Keith Pikett and his use of “evidence” gathered by scent dogs, which they say led to them being falsely accused of and imprisoned for crimes they didn’t commit.

The men — Cedric Johnson, Curvis Bickham and Ronald Curtis — ask for compensatory and punitive damages for months spent in jail awaiting trial for crimes they did not commit. Charges against them eventually were dropped. Also named in the lawsuit are Fort Bend County Sheriff Milton Wright and the Houston Police Department.

Jeff Blackburn, attorney for the three, is leading a campaign against the use of dog scent evidence to charge people with crimes. Pikett and his dogs have been employed by prosecutors and police in thousands of Texas cases, in some instances providing the primary link between a suspect and a crime.

Blackburn is general counsel for the Innocence Project of Texas, which in September issued a scathing report on the use of dog scent evidence, calling it tantamount to junk science. The project works on behalf of wrongly accused people.

You can read that report here (PDF). I’ve blogged about this before here and here, and of course Grits is a comprehensive resource. It occurs to me that this is the sort of thing that the Texas Forensic Science Commission ought to be looking into, to help establish a statewide standard, or at least a set of recommendations and best practices, for local law enforcement agencies to go by. Too bad Governor Perry’s meddling in the affairs of the Commission over the Cameron Todd Willingham case has screwed the pooch on this, so to speak. Maybe some day, when we have a Governor that puts the best interests of Texas ahead of his own, that can happen.

Exonerating the deceased

One of the things Eric Berger focused on in his story about the relevance and importance of Charles Darwin some 200 years after his birth was the rise of DNA and its application to criminology. Today, DNA evidence is as well known for freeing the innocent as it is for convicting the guilty. Sadly, sometimes that evidence comes too late to actually set the wrongly-convicted person free, as is the case with Tim Cole of Lubbock. But that doesn’t make his exoneration any less important. Read his story and think how many others like him there must be.

UPDATE: The Lege pays honor to Timothy Cole. Grits has more.