Cite and Release: A Law Unused is Costing Taxpayers Millions

Nearly a decade ago, Texas undertook an initiative to relieve jail overcrowding, increase police efficiency, and save millions of dollars: cite and release. The innovative justice reform law allows police to simply issue a citation (like a ticket) to people accused of low-level non-violent misdemeanors and release them with a promise to appear in court at a future date. This law eliminates the need to book every accused citizen into the local county jail thus saving significant police hours (they can get back to patrol much faster) and county jail processing time and expense (booking in, setting bonds, providing magistrate hearings, housing costs, booking out)!

Yet, Harris County claims they simply cannot utilize this law due to a computer problem.

In an interview with the Houston Press last week, Harris County District Attorney Devon Anderson said that it’s not because she’s opposed to cite and release that Harris County cops aren’t doing it. It’s because of a computer software problem. Yes, scores of low-level offenders are still having to go to jail pretrial, even though the Legislature said they don’t have to, because of pesky technical difficulties.

The problem is, Anderson said, unlike when writing traffic tickets, cops apprehending people on the side of the road for jailable offenses have no way of generating a court date for those people on the spot. So they wouldn’t be able to simply write a ticket and let them go. Anderson said that replicating the municipal court’s computer system would require overhauling the software and infrastructure for more than 80 police agencies in Harris County. “I don’t even know how it would work,” she said.

upgradeSo, the computer system has no way of generating a court date on the spot. Hmmm… How about selecting a pre-determined day and manually assigning it? Back in the day, the City of Houston officer issuing a traffic ticket had an assigned court day. Each officer had his own. When he wrote a ticket, if his day were Wednesday, for example, he assigned a court day of Wednesday 3-weeks out. Seemed to work quite well for a number of years. Didn’t even take a computer program! (Additionally, the officer can actually telephone the 24 hour District Clerk intake and get an assigned court and court date – since they are already calling the 24 hour DA intake.) Yes, perhaps an updated computer system would help, but 9 years has passed and no one has bothered to look into a new system or new software? In the meantime, a manual process certainly sounds better than continuing to ignore the law which could contribute significantly to reducing jail populations.

Despite the fact that Harris County has spent months chasing (and obtaining) a $4million grant from the MacArthur Foundation to address jail overcrowding, the District Attorney and Harris County Criminal Justice Coordinating Council didn’t even bother to consider utilizing the law’s cite and release option. The Coordinating Council wanted to ease jail overcrowding. Hmmm… Issuing citations to approximately 14,500 people who could have qualified for cite and release in 2015 alone certainly would have lessened the burden on the jail. The District Attorney wanted to focus on diversion efforts. Hmmm… Issuing citations to appear could accomplish the same diversion as soon as the accused appeared.

Diversion is a wonderful tool, don’t misunderstand. But, it only applies to the first-time offender rather than all. Citations, under the law, apply equally to all – whether a first offender or not. Of course, the cite and release law only applies to certain low-level non-violent misdemeanors – the very people targeted under the MacArthur Grant for release to ease jail overcrowding. Cite and release only applies to:

  • Possession of marijuana, up to 4 ounces
  • Criminal mischief, where damage is up to $750
  • Graffiti, where pecuniary loss is up to $750
  • Theft, up to $750
  • Theft of service, up to $750
  • Providing contraband to a person in jail
  • Driving with an invalid license

Nonetheless, our District Attorney instead chose to focus on arrest and conviction diversions for first-time offenders which started with marijuana under 2 ounces and has not yet expanded beyond that (as far as arrests and jail time are concerned). While this is a great endeavor, it does not make near the impact that cite and release would. To date, it has applied to about 1,500 people. (Compare that to the 14,500 cite and release would address.)

Releasing citizens, with proper identification and no outstanding warrants or other aggravating factors, would not only ease the jail overcrowding but also save significant time and resources. Officers could return to patrol much quicker without having to arrest and “book” a person into the jail. The jail would not have to process as many individuals on a daily basis. Citizens could return to work and take care of family without the fear and reality of losing a job after a day or two (or more) of pretrial incarceration. Citizens, able to return to work and take care of family obligations are also less likely to reoffend. It’s a win!

But also, we aren’t even considering it – because the software isn’t already set up to do it. That’s likely the weakest excuse I’ve heard yet.

Secret Stingray Access to Your Phone

Your cellular telephone may be tricked into providing information to law enforcement. Harris Corp. out of Florida is a major supplier of devices (Stingray, Hailstorm, and other models) that serve as cell site simulators and request information from your phone, usually without a warrant. While much of the technology and use of these devices is secret, we have come to learn that these devices can collect calls and texts from anyone within range (even innocent parties) and provide real-time GPS type tracking.

The FBI has been using this technology since at least 1995, mostly in secret. However, over the last couple of years, the use of these secret devices became public, despite nondisclosure agreements that required prosecutors to dismiss cases rather than give up information about their use.

After the device was used as a real-time tracking mechanism, the Maryland Court of Special Appeals upheld a ruling that required a search warrant before police could utilize the Stingray device. Score one for the Constitution and 4th Amendment!

In Texas last year, Senator Ellis introduced legislation to require search warrants for the use of these secret devices; however, that bill didn’t make it very far. That’s politics, and police lobbying, in Texas! There’s always hope for the next session.

Last fall, the Department of Justice issued new guidelines for the use of cell-site simulator technology. The guidelines call for law enforcement to obtain a search warrant supported by probable cause rather than an application for a pen register, except in limited circumstances. The guidelines also prohibit using the device to intercept communications (calls and texts).

Currently, United States legislators are discussing the use of the Stingray and its implications on American privacy:

“If you can track somebody’s location 24/7, you know the content of their life,” said Rep. Jason Chaffetz, R-Utah. “I think innocent Americans have a reasonable expectation of privacy.”

In his bipartisan legislation, Chaffetz seeks to limit the use of these devices by requiring a warrant, supported by probable cause, rather than some lesser showing that is commonly used for pen registers. Pen registers have historically required an application and less than probable cause because of the limited amount of data it would discover: numbers dialed and incoming numbers. The stingray device extends much farther by providing location tracking as well as calls and texts.

Since introducing the bipartisan legislation, Chaffetz said his ongoing investigation into which agencies use StingRay devices and why has yielded few answers.

“It’s still highly secretive,” Chaffetz told Wednesday. “They’re not very candid about how they’re using them.”

“For instance, the IRS has this technology,” he said. “What in the world are they doing with it? It raises questions as to why they would need to track people as they move around the country.”

Undoubtedly, the debate over the use of Stingray devices will not end until laws are passed requiring parameters for their use. Hopefully next year Texas will again see positive legislation being introduced which will require police to obtain search warrants prior to employing these devices.

Eyewitness Testimony: Quality vs. Quantity

Quality of evidence should prevail over quantity, especially when it comes to eyewitnesses. New Australian research suggests that where multiple eyewitnesses select the same person, police should proceed with caution.

University of Adelaide researcher Professor Derek Abbott and his colleagues found the common belief was if a large number of independent witnesses unanimously identified a suspect to a crime, it was assumed they were right. (More is better, or so we thought.) However, statistical modeling by Dr. Abbott’s team showed the probability of a large number of people all agreeing in these circumstances was small, casting doubt on the veracity of unanimity. That is, the more witnesses who agree on an identification, the more doubt we should have. People simply do not perceive things the same way so we should not expect them to all have the same recollection or identification.

Dr. Abbott points out that prior research suggests a group of people witnessing a guy fleeing from a bank with a sack of money results in an error rate among the eyewitnesses equal to about 47%. The statistical modeling in his newer research showed even with just a 1% error rate, confidence in a police line-up result would decrease with just three unanimous identifications. Certainly, this is not the quality of evidence we expect in our justice system.

Take the case of Gilbert Beatty. Beatty was identified as the robber in 5 separate robberies within the Humble area, just outside of Houston. While it turns out Beatty was completely innocent and not at the scene of any of these robberies, 5 independent eyewitnesses selected him as the perpetrator. Every witness viewed a photo lineup and selected Beatty. One witness later told a reporter it was his build rather than his face which prompted him to select Beatty. Another reported there were so many to choose from so he just selected the closest one. Yet, all eyewitness identifications were used to arrest and charge Beatty.

Yes, witnesses can select the wrong person. Not necessarily on purpose. But, in an effort to get a bad guy off the streets, the witnesses in the Beatty case selected the best choice among those presented to them.

How could this happen? According to a 1984 study by psychology researcher Gary Wells, “Witnesses have a natural propensity to identify the person in the lineup who looks most like the perpetrator relative to the others. The problem with that is that if the real perp’s not there, there’s still somebody who looks more like the perpetrator than others.”

When it comes to eyewitness identifications, Matt Brown, recently discussed the necessary skepticism that should prevail in a jury’s consideration of eyewitness testimony and New Jersey’s solution.

People believe cops. People think that other people charged with crimes are probably guilty. People don’t think false confessions happen. People believe that scientific evidence is infallible. And yes, people blindly trust eyewitnesses.

And New Jersey finally did something about it. New Jersey’s Supreme Court acknowledged the problem and made a change: judges must now give special instructions to jurors regarding eyewitness testimony and what scientific research has shown regarding reliability.

In short, eyewitness identification is clearly not as accurate as you might believe. Jessica Gabel Cino summed it up best:

We know that witnesses get it wrong, and that it convicts the innocent. But once they are locked into a statement it’s even more difficult to get them admit any error. In fact, they become more adamant about what they saw, heard, or said when none of it may be remotely true.

The crazy part is that while there are studies and experts on these innate problems, many courts won’t allow that testimony in because they have determined that juries “should know” that eyewitnesses can be untrustworthy.

So just to be clear: If you have an untrustworthy eyewitness as the only evidence against you, we just assume the jury can figure out whether or not that testimony is credible.

Ok, we know it’s not always reliable, but why?

According to the Innocence Project, research illustrates that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. In eyewitness identifications, witness memory is impacted by a variety of factors that occur from the time of the crime onwards, and their memories can be easily contaminated.

Show ups, likely the worst form of witness identification, consist of a police officer bringing a suspect to the witness or taking the witness to view the suspect. In these cases, the witness is presented with just one possible choice in a suspect. Generally, this person will match the general description given by the witness and will be shown to the witness within a short time of the event in question. Often the suspect is already in handcuffs or in the backseat of a police car, leading the witness to believe the police have some evidence that this is the person who committed the crime and making their identification more likely. Because the mind does not work like a tape recorder, the mind can and does fill in the gaps and this face becomes the face of the person seen committing the crime. When the witness learns this person is charged with the crime, the witness will further cement that face as the guilty party. Surprisingly, many jurisdictions still allow this procedure despite its over-suggestiveness.

Photo lineups, often much better than show ups, have still been shown to present a number of problems. A photo lineup consists of a number of photographs, typically 6, being shown to the witness. Where the officer knows which one of the photos in the lineup is the suspect, he may make suggestive statements or unconscious gestures that ultimately influence the witness. Sometimes the particular photos selected for the lineup are suggestive; perhaps one more accurately reflects the general description than the others. In other cases, witnesses select the best match assuming the perpetrator must be present, otherwise, why would the officer be showing them these particular photos. Known problems with photo lineups have led to recent recommendations for reform including blind administration, where the officer presenting the photo lineup does not know which photo is the suspect.

With police practices related to show ups and lineups in question, many have called for reform and better practices. The Arkansas Association of Police Chiefs (AAPC) has updated its model policy, and Chief J.R. Wilson has called for law enforcement across the state to adopt the practices set out by AAPC. The Innocence Project has called for law enforcement to adopt policies accepted by the National Institute of Justice and the American Bar Association.

Though practices and policies may get better, it’s important to understand that eyewitness identification will never be perfect. For three decades psychology researchers have been searching for ways to make eyewitness identifications more reliable. Many studies have shown, for example, the value of double-blind lineups, meaning that neither the cop administering the lineup nor the witness knows which of the photos, if any, is the suspect. But injecting science into the justice system is tricky. Science is ever evolving and never exact. Psychologists often disagree on even current trends. It can take years or decades for a clear picture to emerge.

So what does this mean for eyewitness identification and the criminal justice system?

Well, it means we have a great deal more to learn. It means we need better procedures and more protections. Perhaps eyewitnesses should require corroboration. Maybe juries need to be better educated on the fallacies of human memory and attention to detail. Likely New Jersey got it right by requiring special instructions for jurors.

As John Wixted, a memory researcher at the University of California, San Diego said, “It’s not the eyewitnesses that are making a mistake. It’s the legal system that is making a mistake.”

Right to Bear Stun Guns

Yesterday, the U.S. Supreme Court ruled a Massachusetts woman just might have a 2nd Amendment right to carry a stun gun. She was originally arrested, charged, and convicted of carrying a stun gun in violation of Massachusetts’s law. All agreed she bought and carried the stun gun for protection from her abusive ex-boyfriend. The Court, setting aside her conviction, essentially expanded the 2nd Amendment “right to bear arms” by suggesting a woman has a right to carry a stun gun, or taser, in public to defend herself.

A few states, including Massachusetts, New York, New Jersey, Rhode Island, and Hawaii, as well as several cities have passed laws that generally forbid the carrying of tasers or other similar electronic shock devices. Now, those laws are in question. Without specifically saying stun guns are specifically protected by the 2nd Amendment, the per curium opinion (an opinion in the name of the court rather than a judge or judges) held the Massachusetts court misunderstood the Supreme Court’s prior rulings on how to determine whether a particular weapon is protected or not. In short, the Supreme Court told Massachusetts to come up with a better reason for its prohibition if it wants to keep the prohibition.

The Massachusetts court made three arguments for upholding its law which forbids carrying stun guns in public.

First, Massachusetts said stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” The Supreme Court found this theory unpersuasive and against its prior rulings. Just because a particular technology was not available or common in the 1800’s, does not mean the 2nd Amendment cannot protect it. Specifically, in its prior rulings, the Supreme Court has said the 2nd Amendment extends to arms that were not in existence at the time of the founding of our Amendments. (Heller court opinion)

Next, the Massachusetts court relied on its position that stun guns were dangerous and unusual as a reason for upholding its ban. The Supreme Court again found this theory without merit. The Supreme Court said Massachusetts equated “unusual” with “in common use at the time the 2nd Amendment was enacted.” And again, the Supreme Court stated the state could not rely upon only those arms that existed at the time of the Amendment.

Finally, the Massachusetts court stated stun guns were not of the type of weapon which would be readily accessible to the militia. Massachusetts based this on the 2nd Amendment itself and its language regarding a well regulated militia being necessary to justify the right of the people to keep and bear arms. Again, the Supreme Court took exception and reminded Massachusetts that its prior rulings did not limit the 2nd Amendment protection to only those weapons used in warfare.

Finding each of Massachusetts’ reasons flawed, the Supreme Court vacated or cancelled the woman’s conviction and directed the Massachusetts court to reconsider in light of the Supreme Court’s rationale and prior rulings.

With the Supreme Court issuing a very brief opinion, Justices Alito and Thomas entered their own concurring opinion to better explain their position. After detailing the events surrounding the abusive ex-boyfriend and the state of Massachusetts failing to protect her, they take Massachusetts to task for failing Ms. Caetano yet again:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.

It is clear from these opinions that the 2nd Amendment is alive and well in the United States. The Supreme Court is unwilling to change its prior positions and looks for the states to get in line with the right to keep and bear arms.

Conviction Integrity?

What good is a conviction integrity unit, or conviction review division as Harris County calls it, when it does nothing to test the validity of a conviction?

Granted the conviction review division in Harris County investigated cases where guilty pleas were later set aside upon findings of “no controlled substance” by laboratory testing. But what about other cases? What about those cases involving claims of actual innocence?

Over the past several years, lawyers for David Temple, the Katy football coach convicted of murder, have continued to investigate his claims of innocence and lack of due process by prosecutorial misconduct. This week, 48 Hours aired its Playing by the Rules? episode chronicling the case and the allegations against Kelly Siegler, then Harris County prosecutor, who handled the trial and has been found to have hidden police reports and other evidence.

While we now wait on the Court of Criminal Appeals to issue its decision on Judge Gist’s recommendation for a new trial, let’s look back at some of the key points in this journey.

Brady Information – Exculpatory Information
(like Riley Joe Sanders failing polygraphs and having inconsistent statements)

Kelly Siegler maintains, Temple’s lawyer Dick DeGuerin was given everything he was entitled to when he was entitled to it. But, she also admittedly served was the gatekeeper of what Mr. DeGuerin was entitled to. As she testified in the writ hearing and stated on 48 Hours, she decided what to believe and thus what to disclose. Notably, Judge Gist found she failed to disclose necessary information to the defense.

Despite her personal thoughts on determining which exculpatory evidence to disclose, the courts have been clear that all exculpatory evidence should be disclosed. Even mitigating evidence should be disclosed. That’s been the law since the U. S. Supreme Court decided Brady v. Maryland in 1963. Since 1963, prosecutors across the country have taken it upon themselves to decide whom to believe and thus what was considered “Brady” material requiring disclosure. More recently, the Texas Board of Disciplinary Appeals (who regulate lawyers and their conduct) found that the prosecutor owes a greater duty than that provided under Brady. The prosecutor’s duty to disclose does not depend on “believability” or even “materiality” but rather should be disclosed without the prosecutor making a judgment call.

Internal Investigation

In an interesting twist, it was an investigator within the Harris County District Attorney’s Office who was tasked with testing the integrity of the conviction and “new evidence” who was then shunned and had the rug pulled out from under him. Steve Clappart was assigned to review the new evidence supplied by Mr. DeGuerin – a statement from Glasscock. During his review, he did what any good investigator would do – review the evidence and follow wherever it led. As he began to follow the evidence, senior prosecutors within the office sought to sabotage his investigation. They made phone calls to one another, to investigators, and even former prosecutor Kelly Siegler. They learned he intended to interview potential witnesses. They quickly notified Kelly who then called the witnesses to tell them to get lawyers. In her 48 Hours interview she justified this conduct by stating it is a prosecutor’s job to protect people who may need a lawyer. What? Seriously?

How many prosecutors notify suspects when a warrant issues? How many times did Kelly herself call witnesses or suspects when she assisted law enforcement in obtaining pocket warrants? I suspect never. I’d certainly be shocked to find it ever happened outside of this case. And if it did, shame on her and anyone else engaging in such conduct. A prosecutor’s job is not to determine who needs a lawyer and who doesn’t.

Say what you want, but internal employees seeking to undermine an internal investigation just smacks of inappropriate conduct. This wasn’t Dick DeGuerin’s investigation – it was an internal District Attorney investigation which members of the office didn’t want investigated. They don’t like convictions being challenged.

Writ Hearing

Rather than seeking to find the truth, it certainly appears the District Attorney’s Office did everything they could to champion the actions of Kelly Siegler and uphold the conviction rather than checking the integrity of the conviction. Kelly Siegler has stated that every one of Judge Gist’s findings are just plain wrong. She found the hearing itself inefficient and redundant.

I’ve written before about this process, and yes, the District Attorney has filed objections to Judge Gist’s findings, but it is difficult to imagine that Judge Gist heard weeks of testimony and simply got it all wrong. Judge Gist is a respected jurist. He is conservative and widely praised for his integrity. He’s also from outside the inner-sanctum of Harris County, though he is a former prosecutor. He has never served as a defense attorney. He has received the Judicial Lifetime Achievement Award for his years of service and his reputation for and commitment to judicial excellence.

It seems rather improbable that Judge Gist simply got it all wrong especially in light of 36 specific instances of conduct that he found required a new trial for David Temple. But time will tell. The Court of Criminal Appeals will make its decision. In the meantime, perhaps the District Attorney’s Office conviction review division will really review this case and others.

Read findings here

Read more at the following companion pieces: