Traffic arrests causing jail crowding?

Friday, the Houston Police Department announced that it would cease arresting people for minor traffic offenses, presumably those punishable by fines only, because they were causing a jail overload.
This raises the question of how many traffic offenders are arrested by the Houston Police Department and who they are. Are there enough arrests for traffic offenses that it can fill up the jail?
Police in Texas can arrest Texans -- but usually not those with out-of-state driver's licenses -- for any traffic offense except speeding and drinking while driving. Each police officer has the discretion to issue a traffic ticket or arrest the driver for things like driving without a buckled seat belt or making an illegal lane change or a turn without a signal.
And, the Supreme Court has held that it is constitutional for police to have discretion to arrest people and slap them in jail for crimes for which jail is not a possible punishment.
I've had my share of traffic tickets over the years and I've never been arrested. And, I can't recall any of my friends or colleagues being arrested for minor traffic violations. But, I've had a lot of clients arrested for failure to signal a turn.
The difference? Well, maybe it's because because I'm white and middle class and my arrested clients usually are neither.
Some probably arrested for what Chuck Miller, a former judge on the Court of Criminal Appeals, called "poor person in a no poor person zone." I've heard the same sentiment expressed but normally it comes with a racial connotation. I've seen people get arrested on traffic because they were white people in a no white people zone and, yes, you guessed it, black clients arrested in a no black people zone.
Why do the police arrest these folks for minor traffic violations. Well, if they can impound the car, they can search it and look for contraband like drugs. Shocking, isn't it.
Maybe my former colleagues at the Chronicle ought to take a look at the statistics of those arrested on minor traffic violations rather than being issued a citation. I'm curious how many of those people have River Oaks or Memorial home addresses and how many have Third or Fifth Ward addresses. And, I'm curious about their races. How many are white, black or Hispanic?
If I were a betting man, I would bet that the vast majority are young, minority males.
And, why you ask, can't they arrest people with out-of-state driver's licenses? It's because Texas, like most states, is a member of an interstate compact on traffic offenders. That compact which was passsed by the Legislature and approved by Congress, requires issuance of a ticket to persons from compact states if the officer has any discretion about arresting traffic offenders or giving them a ticket, the officer must give the driver the chance to sign the ticket and promise to appear.
The compact was adopted to prevent people from being arrested by Deputy Fife in Mayberry and being required to post a bond before being released.
Of course, most Houston police officers probably haven't heard about the compact. Or, they think it doesn't apply to people they think may have contraband.

Crime doesn't pay. But traffic tickets do.

Two posts in one day. Amazing.
USA Today had another interesting story on page one. It's about increased enforcement of traffic laws because cities and counties need the money.
Gee. Like Captain Louis Renault, the character played by Claude Rains in Casablanca, I'm shocked.
You can bet that police officers who hear rumors of layoffs will be quick to write tickets in the hope of keeping their jobs.
But, public officials shouldn't count on that fine money to keep flowing. Back in the 1980s, when Kathy Whitmire was mayor of Houston, members of the police department used ticket fines to jerk her administration around.
At one point during her administration, the police were writing tickets galore. The money just poured into municipal court and the city coffers. And, Whitmire counted on that money to balance her budget.
But, she was unpopular with many police officers. So, when she was committed to spending that money, all of a sudden the police turned off the money spigot. It was darn difficult to get a traffic ticket in Houston. The income from fines plummeted.
Enough said.

As long as judges are for hire, justice is for sale

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Gays in the military. What's the big deal?

This topic has raised its head again. President Clinton's don't ask, don't tell policy isn't working so, it's time to reconsider how gays should be treated by the American military.
My position is the same as the late Sen. Barry Goldwater's position. Goldwater, a retired major general in the Air Force Reserve, in the early 1990s was asked about whether gays should be allowed in the military. It was after he retired from the Senate, where he had been chairman of the Armed Services Committee.
That right-wing extremist from the 1964 presidential campaign said simply: What's the big deal. Gays always have been in the military and they always will be.
However, it is refreshing to see General Colin Powell climb on board the gays in the military bandwagon. When he was chairman of the joint chiefs of staff, he opposed allowing gays in the military saying it would ruin unit cohesion. That's exactly the same argument used in the 1940s by people who wanted to keep the Army segregated and to keep African Americans like Powell in menial jobs and in black units with white officers.
While I am sure Powell would have made a fine truck driver for the Army, it would have been a waste of talent to keep him in that kind of position seeing the excellent job he did as national security advisor to President Reagan, chairman of the joint chiefs under Presidents George H.W. Bush and Clinton and as secretary of state under the second President Bush.
It's the same with gays in the military. The military spends thousands of dollars and incredible amounts of time training people and giving them experience to do their jobs only to kick them out when it turns out they are gay. While I don't have any statistics, I am told that it is especially hard on lesbians. As a society, we can't afford to waste this talent and the training.
Sexual preference should be treated like race.
The military had terrible racial problems during the Vietnam era. There was a race riot on the U.S.S. Kitty Hawk. There were simply awful racial problems throughout the military. I was in when we worked to get racism out of the Army.
Today, the U.S. Army is probably the most non-racial entity in America. Soldiers are judged by how well they perform their duties, not by the color of their skins. I am sure there are racists in the Army but if they start acting on it, they either cure problem or they are shown the door.
The same will happen when gays are allowed to serve openly. There may be problems at first but the military will work them out.

An embarassment to Texas justice

Last night, Texas executed one of my former clients, Robert Thompson, for a capital murder in which he was not the shooter. The shooter, Sammy Butler, although charged with capital murder, was convicted of a lesser and sentenced to life. He'll be eligible for parole in a couple of years and likely will be free someday.
The difference: their lawyers.
Butler was represented by Rocket Rosen. Thompson's lead counsel was terrible.
I was appointed to do the state application for writ of habeas corpus. When I looked into the background of his lawyer, I was shocked.
The man's license to practice law had been suspended three times before he was appointed to represent Thompson in December 1996. Two of the three suspensions were for messing up cases. One was for sharing legal fees with a non-lawyer. Two of the three suspensions were partially probated and the third fully probated.
The worst was the third suspension, in 1995 -- only a year before being appointed to represent Thompson -- was for messing up a court-appointed criminal case. A jury found professional misconduct and a district judge ordered his license suspended for 27 months (with the last 24 months probated).
What is truly amazing is that the judge who presided over the trial stayed enforcement of the three-month active suspension so that the lawyer could represent a defendant in a death penalty trial.
That defendant was luckier than Thompson. After the jury was picked, the District Attorney's Office agreed to let him plead guilty for a life sentence rather than face the death penalty.
That lawyer no longer is eligible to receive appointments in capital murder cases. But, the Harris County district judges have certified him to represent indigents charged with any other felonies, including those punishable by up to life in prison.
An argument can be made that Thompson richly deserved the death penalty. The murder for which he was executed was only the last in a string of convenience store robbery-murders he and Butler pulled. But, he shouldn't have died for this killing. He wasn't the triggerman and the triggerman did not face the death penalty because he had a great lawyer while Thompson had a poor one.
Butler's lawyer argued that Butler did not intend to kill the clerk he shot. Thompson's lawyer argued that he did not anticipate that there would be a killing even though Thompson shot another clerk four times, then tried to beat him to death with the cash register drawer.
The difference is sentences probably is why the Texas Board of Pardons and Paroles voted 5-2 to recommend that Gov. Rick Perry commute his sentence to life. Perry had done it before in a similar case in which the triggerman got life and the getaway driver got death. But, the governor chose instead to let Thompson die for a killing he did not commit while the killer is almost eligible for parole.
I have no moral problems with the death penalty in a proper case. I am sure that in some cases, if I were on a jury I could vote to sentence someone to death. But, if the State of Texas is going to kill people, they should have good lawyers not empty suits.
Society owes it to itself to ensure that people who face the ultimate punishment are properly represented.

A UN tribunal is Ignoring genocide in Rwanda

I've ranted and raved a bit about the Harris County Criminal Justice system. Now, it's time for a little ranting on the International Criminal Tribunal for Rwanda.


The tribunal's leadership says it is trying to end impunity for war criminals. But it has delivered impunity to the victors in a civil war even though it has substantial evidence of serious war crimes by the victorious army.


The tribunal's prosecutors have evidence of 500,000 murders and it is doing nothing to prosecute the perpetrators. Instead, it is engaged in a bit of butt kissing with the leaders of the murderous army.


The tribunal was set up by the United Nations Security Council in 1994 to try persons charged with war crimes in the genocide in that Central African nation. The country was and still is divided into two basic ethnic groups -- Hutus and Tutsis.


The Hutus make up about 85 percent of the population and ruled the country before the 1994 genocide. Minority Tutsis, generally children of Tutsis who left the country for Uganda in the early 1960s, invaded the country in 1990 and defeated the government army and took power in July 1994.


Most of the world's attention has been focused on the massacres of Tutsis from the time the president's plane was shot down on April 6, 1994, until the government went into exile in mid-July. And, it was terrible. Somewhere between 500,000 and 800,000 Tutsis were murdered.


So, the tribunal has indicted what it calls the leaders of the genocide. One of the defendants is my client, Prosper Mugiraneza, the former minister of civil service.


While I think Prosper is innocent, I can't complain about trials of the Hutu leadership if there is evidence of their guilt.


But, I'm shocked and amazed that the tribunal is simply ignoring as many as a half-million murders of Hutus by Tutsis during the war. It's just wrong.


A lot of defense types at the ICTR, some expert witnesses for the prosecution and exiled Hutus have complained for years that the the tribunal is delivering victor's justice, that is, just prosecuting the Hutus while ignoring crimes by the Tutsis. One expert witness for the prosecution in many trials, a Belgian professor named Filip Rentjens, has flatly refused to testify for the prosecution again until at least one Tutsi is indicted. Another, the late Allison des Forges, has testified and written that approximately 40,000 Hutus were killed by Tutsis.


But, des Forges was off by a factor of 10, according to some evidence gathered and suppressed by the tribunal's prosecutors. A couple of years ago, prosecution witness was interviewing a Tutsi who knew about the actions of the Rwandan Popular Front army, the main Tutsi political group and the eventual victors in the civil war. He asked how many Hutus were killed by the RPF army and thought the answer was mistranslated. So, he wrote down the number he thought was right, 50,000. The witness said, no, then added an extra zero, making it 500,000 dead.

A half million dead people and the prosecutors at the UN tribunal haven't even said that it is tacky conduct. Why?

Well, there are a couple of reasons. First, the Kagame government in Rwanda is a wholly-owned subsidiary of the US government. And, the US writes the biggest checks to the UN. So, part of it is the golden rule, he that has the gold rules.

A second reason is the tribunal's completion strategy. The Tribunal with a $130 million plus annual budget is a money pit for the UN. All to try about 70 defendants -- all Hutus -- since 1994. The tribunal has promised the UN Security Council it will finish all trials by the end of 2010 and nothing is going to stand in the way. Indict some Tutsi officials and the completion strategy goes down the tube.

Most important is that the tribunal is scared to death of crossing the Rwandan government. Most of the witnesses come from Rwanda and the government can turn off the flow of witnesses like a tap. And, the tribunal knows it can because it has at least once in the past.
That was the case of Jean-Basco Barayagwiza. He was an official in the former government's foreign ministry charged with inciting the genocide.

In 1999, the tribunal's appeals chamber ruled unanimously that the charges against Baraygwiza should be dismissed due to violations of his rights after he was arrested.

The Rwandan government went nuts. It cut off cooperation with the tribunal. The tribunal almost instantly ground to a halt.

So what happened? The prosecutor s filed a b.s. motion to reconsider. Four months after its initial decision, the appeals chamber reversed itself in a decision that ranks with Bush v. Gore for intellectual honesty. Instead of releasing Baraygawiza, the appeals chamber ordered that if acquitted he be given cash compensation and it convicted, his sentence be reduced to account for the violations of his rights.

In 2003, Baraygawiza was convicted. His two co-defendants got life. But, to give credit for the violation of his rights, Baraygawiza -- who was then 53 years old -- was sentenced to "only" 35 years in prison. Given the credit on his sentence for time served, he would have only been 80 years old when he completed his sentence.

On appeal, his sentence was reduced to 33 years. So, he can look forward to being released when he's 78.

If the Rwandan government is willing to cut off the tribunal for releasing a single defendant like Baraygawiza, what would it do it the tribunal indicted the president of Rwanda and his top military and political subordinates? It would go mad. You can bet the tribunal's office in Rwanda would be closed and the staff there run out of town on a rail. As for witnesses in the trials in progress. When pigs fly.

This isn't to say that the judges on the tribunal always cave in to pressure from the Rwandan government. To the contrary, the tribunal has acquitted six defendants including cabinet ministers and senior military leaders of the former government. I expect more acquittals. For instance, I truly believe my client has a shot at being acquitted.

And, the judges have shown the spine to refuse to transfer defendants to Rwanda for trial due to worries about the Rwandan judicial system. The Rwandan government screamed like stuck pigs when that happened but the tribunal's judiciary commendably stuck to its guns.

But, the powers that be such as the prosecutor and the top administrator, aren't about to get the Rwandan government mad at them.

So, the long and the short of it is that the tribunal likely will do half of its job to end impunity for mass murders. It ended impunity for those who lose.

As for the winners, well, what the heck. It was only a half-million Hutus killed. There are lots of Hutus in Rwanda and a few more or less won't make any difference.

Long pretrial incarceration and our judges

In Sunday's Chronicle, there was a long story about lengthy pretrial incarceration and how some people blame the current system of court appointments for defense counsel for the indigent.
That's not true. The real blame should be placed at the feet of our elected judges and the county's bailbondsmen.
Lisa Olsen's sources seem to think a public defender system would solve this problem.
As Col. Potter in the classic television show M*A*S*H would have said, Horsehockey!
Once a criminal charge is filed, with a very few rare exceptions, the case ends in one of three ways. The defendant pleads guilty, the prosecution dismisses the case or it goes to trial.
I don't see how a public defender's office can change the possible outcomes. About the only way it could speed up the system is by pleading its clients quickly or convincing the prosecution to dismiss more cases. If it manages to do one of those things, it will reduce the number of cases set for trial, thereby reducing pretrial delay. But otherwise, it's hard to see how a public defender's office could reduce jail crowding.
The real reason most indigents sit in jail awaiting trial is simple. They're broke and can't afford to post a bond. Along with that, our judges often raise bonds or revoke them because the defendants violate conditions set on their bonds.
There is a solution to this problem. It's not novel. It's been around for 35 years. All we have to do is use it.
It's the Harris County Pre-Trial Release Agency.
In the mid-1970s, as part of a suit challenging overcrowding in the Harris County Jail, then-U.S. District Judge Carl O. Bue ordered creation of the agency. The idea was that people charged with crimes would be released on their own recognizance rather than being forced to hire bailbondsmen or sit in jail. A lot of research was done to determine what factors are good predictors of a person's likelihood to show up for trial. Every person booked into the jail is interviewed using those predictors and given a score.
The factors range from criminal history to whether they have a job and a home telephone.
It isn't a new concept. In federal court, magistrate judges routinely conduct detention hearings to determine if a person should be released pretrial or detained. If a person is ordered released, the magistrate judges set conditions and often require them to place 10 percent of a bond amount in the registry of the court. When the case is over, they get it back.
If the magistrate judge believes the person is likely to flee or be a danger to society, they stay in jail. Money or lack thereof makes little difference. Ask R. Allen Stanford, who is in federal detention because he was found to be a flight risk.
But, that's not how it works in Harris County.
If a defendant or his family can't come up with a bondman's fee -- a minimum of 10 percent of the bond -- or collateral to guarantee that a bondsman can recoup his losses if a defendant does not appear, the defendant sits in jail until his case is disposed of.
Bondsmen promise to pay Harris County the amount of the bond if a defendant does not appear in court. And, if a defendant runs, they usually are given a period of time to catch him and get him in jail. Dog the Bountyhunter on television is one of those persons who hunts absconding clients for bondsmen.
I haven't looked in a while but at one time, the failure to appear rate for defendants on bonds was about the same as that for defendants released on personal bonds. And, any comparison now might be useless because so few personal bonds are granted.
The reason is simple. Bondsmen are in the business of making bonds and collecting their fees. For every personal bond granted, there is one less potential customer for the bondsmen. So, they do what any American business does when politicians like elected judges have control over their profits.
They give campaign contributions. And, even if they don't give a lot of money to judicial campaigns, the judges know darn well that they can and will if a judge grants too many personal bonds.
So, the pre-trial release agency has been reduced to an agency that supervises people who post bonds and who have conditions of bonds imposed on them. It's the pretrial release agency that tests urine samples from defendants, ensures that they follow court-imposed curfews and follow whatever other conditions the judges set. But, those conditions only go into effect when the defendant ponies up the money for a bondsman. And, they can be imposed on personal recognizance bonds too.
If the pretrial release agency was allowed to do what Judge Bue expected, it could do a lot to reduce jail crowding, just like Judge Bue expected. That in turn would save the county a lot of money running the jail.
And, pretrial personal bonds could save the county money another way. If the defendants were required to post a percentage of the personal bond with the county, most lawyers would take an assignment on that as part of the down payment on a fee.
That in turn could mean fewer court appointed lawyers. Every dollar that goes to a bondsman is one less dollar to pay a defendant's lawyer.
In Austin, Travis County judges are aggressive in their use of pretrial personal recognizance bonds. Bondsmen are practically out-of-business there. So, they should have fewer people sitting in jail awaiting trial. The system works there, just like it works for the feds.
Using personal recognizance bonds won't empty the jail. Some defendants will be such bad risks that the judges can and should deny personal bonds. Others will be on parole and held without bond because of parole violator warrants. But a lot could be released on personal bonds to work, support their families and possibly earn enough money to pay for their own lawyers rather than having the county's taxpayers pay because the defendant is in jail where he can't work.
There are a lot of good arguments for and against a public defender system. Jail overcrowding isn't one of them.
But, our judges could do a lot to clear out the jail and save the county a lot of money if they simply used the tools at their disposal, tools that work elsewhere and which would work here.
But, that might make the bondsmen unhappy, and who would want to do that?