The Texas Observer

The State of Texas is scheduled to execute Willie Pondexter at 6 p.m. this evening in Huntsville, barring a last-minute reprieve from the U.S. Supreme Court.

As we reported last week, a half-dozen prison guards on death row have indicated they believe Pondexter is rehabilitated and don’t think he should be executed. It’s quite rare for correctional officers to express such strong sentiments for a condemned inmate. Several guards say they would like to speak out in support of Pondexter’s clemency, but fear retaliation by prison officials. They say there is an unwritten rule not to support condemned inamtes’ clemency appeals.

Texas Department of Criminal Justice officials say there is no policy prohibiting guards from signing affidavits or testifying in capital cases. Attorneys for the state told the Associated Press last week that Pondexter’s federal lawsuit, asking for a 120-day stay of execution to obtain statements from guards and to file a stronger argument for clemency, was “frivolous.”

Pondexter, then 19, was convicted of the 1993 slaying of 85-year-old Martha Lennox in Clarksville.

The Texas Board of Pardons and Paroles rejected Pondexter’s bid of clemency late on Friday. That wasn’t a surprise — Pondexter’s attorneys have acknowledged that the clemency appeal was incomplete because it’s missing vital testimony from prison guards. In fact, that is the point of their appeal to the Supreme Court asking for more time to obtain statements.

Texas has executed eight people so far in 2009.

A well-known Austin activist fingered as an FBI informant has acknowledged that he provided information leading to the arrest and felony indictment of two Austin men who participated in protests last September at the Republican National Convention in St. Paul, MN.

“The simple truth is that I have chosen to work with the Federal Bureau of investigation [sic],” Brandon Darby said in an open letter he sent this week to friends he has worked with since 2002.

Darby’s activist network stretches from Austin to New Orleans, where he co-founded Common Ground Relief, a grassroots reconstruction effort that drew thousands of volunteers from around the country. In 2004, he helped organize and was arrested during anti-Halliburton protests in Houston. His letter suggests that he disagreed with tactics some members of the Austin Area Affinity Group planned to use to disrupt the Republican Convention. Darby was a member of the group.

“When people act out of anger and hatred, and then claim that their actions were part of a movement or somehow tied into the struggle for social justice only after being caught, it’s damaging to the efforts of those who do give of themselves to better this world,” reads Darby’s letter.

Darby’s fellow activists say they identified him as “CHS 1” – confidential human source 1 – after reviewing an affidavit (PDF) by FBI agent Christopher Langert that was released in discovery in the case against David Guy McKay, 22, and Bradley Neal Crowder, 23. They say information described in the affidavit came from conversations between McKay and Darby.

The informant told Langert that McKay and Crowder fashioned protest shields made from cutting traffic barrels in half. After describing how police seized these items from a trailer the two helped drive from Austin to St. Paul, Langert refers to conversations gathered when the informant wore a wire to record McKay talking about how he and Crowder had made Molotov cocktails, using tampons soaked in lighter fluid for wicks.

The Molotov cocktails were among the items seized in a raid that led to felony indictments of McCay and Crowder, now known as the “Texas Two.” They were charged with possession of unregistered firearms (the cocktails). Information gathered by Darby may have contributed to broader charges against eight others from around the country for conspiracy to riot and conspiracy to damage property in the furtherance of terrorism.

Several of Darby’s friends initially defended him against accusations that he was an informant, but after they acquired additional court documents from sources close to the case against McCay and Crowder, they confronted him days before he went public.

“I don’t feel like I lost my credibility,” says longtime Austin-based activist Scott Crow. “But I staked my credibility defending him, and people backed me up.” Now that Darby has gone public, Crow is ready to go on the offensive.

“While it is not yet clear how long or to what extent Darby has been acting as an informant, the emerging truth about Darby’s malicious involvement in our communities is heart-breaking and utterly ground-shattering to some of us who were closest to him,” says Crow, who in 2005 co-founded Common Ground Relief with Darby.

Activists in St. Paul with the RNC Welcoming Committee posted a video in October 2007 that showed a tongue-in-cheek use of a Molotov cocktail to light a barbeque. Langert’s affidavit states that Darby had been working with the FBI since November 2007.

Crow and another member of the group claim the additional court documents – which the group has so far declined to make public - show Darby actively encouraged, enabled and provoked McKay and Croder to take illegal action. Crow asserts that Darby “hadn’t even met these guys yet” when he began reporting to the FBI. “How can you know they’re going to plan something,” he asks, “if you hadn’t met them yet?”

McCay’s father has previously argued that his son was naïve and gullible.

McCay and Crowder have been denied bail and remain in federal detention in St. Paul. Their trial date has been postponed indefinitely. They each face seven to 10 years in prison.

–Renee Feltz is a fellow at the Toni Stabile Center for Investigative Journalism and an intern with the investigative unit at The New York Times.

State Rep. Debbie Riddle, a Republican from Tomball, continues her crusade against undocumented immigrants with a suite of bills that would turn the screws on non-citizens.

House Bill 50 would bar undocumented immigrants from paying in-state tuition. Similar bills failed last session. HB 48 would allow for state investigations into employers who have “knowingly” hired illegal immigrants. The Texas Workforce Commission could, through a tribunal process, strip the employer of state-issued licenses. (Call it the Brown Scare: “Mr. Smith, are you now or have you ever been the employer of an ILLEGAL ALIEN?”)

A third bill, HB 49, has received much less attention. It would create a new misdemeanor offense — Criminal Trespass By Illegal Aliens — that would appear to apply to a virtually limitless number of border-hoppers. Under the legislation, cops would be authorized to arrest individuals believed to be “trespassing” in Texas, among other federal immigration violations. Riddle’s new trespassing crime is in fact a state application of long-standing federal statutes that prohibit illegal entry into the U.S.

In recent years, federal prosecutors, working with the Border Patrol, have clogged Texas border courts with immigration cases. It’s part of the Bush administration’s “Operation Streamline,” a zero-tolerance program that aims to charge, convict, and deport every single apprehended illegal entrant.

That’s not good enough for Riddle. Her bill would dramatically widen this dragnet by allowing local law enforcement in on the game. The concern among immigrant rights groups is whether it’s appropriate for local cops to essentially enforce federal immigration laws.

Now, Riddle may seem like a hater, but like a lot of social conservatives she’s got God on her side. Back in March she told a House committee that the Big Guy was interested in seeing legislation like HB 49 taken up by the Lege. “I think God would have us work on this and then vote,” she said.

Kudos to Col. Thomas Davis, director of the Texas Department of Public Safety, that he didn’t insult our intelligence with the old I’m-retiring-to-be-with-my-family line. Instead the statement that went out this afternoon simply said:

“After 43 years and 9 months with the Texas Department of Public Safety, I am retiring on Aug. 31, 2008.”

Davis became director of the DPS in 2000. The resignation won’t become official until the DPS Commission meets on Thursday. Nor will we likely have an inkling until then who might replace him.

Those in the media will probably blame fallout from the fire at the governor’s mansion and the browbeating Davis received from legislators at a June 24 public hearing of the Sunset Advisory Commission as reasons why he stepped down.

I have my doubts.

If the mansion fire was a DPS error, the fault likely did not reside with Davis. Yes the DPS did not have sufficient staff at the mansion. But one has to wonder if troopers were pulled off the mansion detail to accompany the governor as he gallivanted around Europe on the taxpayer’s dime. We will never know since DPS does not comment on the governor’s security. Another, perhaps more likely, reason why there was only one trooper at the mansion has to do with Operation Border Star, Perry’s get-tough on the border initiative. It is now apparently standard practice to send troopers down in squads to patrol the border area, stretching an already undermanned agency.

The Sunset Review found all manner of problems at the DPS, including the aforementioned shortage of officers. This is less Davis’ fault than the demographics of an aging population and a very young one without much in between. It also doesn’t help that there is fierce competition for officers from the border patrol and the military. The feds pay more. The review also found fault with DPS’ handling of driver’s licenses. The logical solution to this would be to spin off this non-law enforcement responsibility as a stand alone or move it to another agency, say TXDOT. DPS Commission Chairman Alan Polunsky made it clear that he would never agree to such a move.

Polunsky is not waiting for the Sunset review process to play itself out over the next legislative session. In this way, the reforms underway will not be widely disseminated and publicly debated before implementation. Instead there appears to be a still-largely secret plan for DPS. This plan may have played a role in Davis’ departure.

To begin to understand what is underway, read Perry’s 2005 homeland security plan authored by Steve McCraw. The plan calls for a statewide intelligence service. This state intelligence service is to focus on intelligence gathering and counter-terrorism investigations. TDEX, the governor’s database, was a piece of this plan.

Polunsky referred to this obliquely at the Sunset hearing, when he said that the commission will “be directing the department to extend into other areas as we go forward.”

I called the chairman the following day and invited him to expand on his remarks. While insisting that “nothing has been decided,” he admitted that “there is probably going to be some movement in that [intelligence] direction.”

A consultant will look at the agency from top to bottom before changes are instituted.

Then there is the cauldron of personalities that can be DPS.

There has long been a rumor of tension between the graduates of the so-called class of ‘77. That class included Kent Mawyer, chief of DPS’ criminal law enforcement division, current DPS Assistant Director David McEathron, and Perry’s Homeland Security Director McCraw. While Mawyer and McEathron scaled the hierarchy at DPS, McCraw, an El Paso native, left the agency in 1983 to join the FBI as a special agent. We’ve heard McCraw and his former DPS colleagues don’t always get along.

Does McCraw hope to head this new intelligence service/state police? Are his former classmates troubled by the changes under discussion? Did Davis’ efforts to mediate the potential conflict fall flat? We don’t know. Was the rush to make changes to DPS before the Legislature convenes in January a factor? Hard to say.

We will try to get some answers to these questions in the days ahead. In the meantime, Davis had a very tough job that he did quite well. It’s a shame for Texas that he is stepping down.

Despite the ACLU’s TYC lawsuit, many juvenile justice advocates assert that, while it’s slow-moving, there is progress at TYC — trickling down from the top.

When Richard Nedelkoff became TYC conservator and brought new leadership from outside the agency, reform proponents saw hope for change—hope that may have been dashed by the ACLU’s revelations of punitive practices and abuse.

But for those brave (or naive) enough to keep believing in the possibility of reform, the ACLU’s revelations don’t seem to fit the classic TYC pattern of abuses following the promise reform. State-appointed TYC watchdog and former ACLU director Will Harrell says the suit does not accurately reflect the massive culture shift occurring at TYC. And, even most youth advocates say there’s evidence the agency is on the right path; it just needs legislative and fiscal support.

“Six months ago, I wouldn’t have believed the reforms taking place at TYC were possible,” says Harrell, “but this leadership has embraced all the principles we advocated for in the past.”

Harrell says most allegations mentioned in the ACLU suit are already being addressed. “I wish ACLU would have come to me before filing suit,” he says.

Litigation, says Harrell, is often an ineffective means to bring about change, especially when it involves filing suit against an underfunded agency, whose new leaders have demonstrated a willingness to openly discuss problems and issues with advocates.

And, indeed, advocacy organizations traditionally opposed to TYC say they have seen dramatic changes in the agency over the past six months. “TYC leadership is making encouraging cultural and structural changes,” says Deborah Fowler, legal director of Texas Appleseed, a non-profit that sued TYC last year over pepper spray policies. “The new leadership shares our reform vision,” she says.

So why did the ACLU hit TYC with such force just as the agency is trying to right itself?

Terri Burk, ACLU of Texas executive director, says the organization was representing clients with pressing needs, and the 2007 legislative reform was too slow in its progress. The best way to move the process along was to file suit, she believes.

“Culture shifts won’t happen overnight in an agency with deep-rooted issues to overcome,” responds Harrell.

Advocates on the ground seem to agree.

“TYC is a big ship to turn around. It takes longer than we sometimes would like, but it’s moving in the right direction,” says Rebecca Lightsey, Texas Appleseed executive director.

Ultimately, it seems the longevity and speed of reform efforts depend on those beyond TYC’s top management. “TYC finally has leadership that’s youth and family-focused,” says Jodie Smith, public policy director of Texans Care for Children. “The burden of change now falls to the legislature.”

“You get what you pay for,” says Harrell, who believes funding issues will ultimately determine the pace of change. “The real test of progress will be what reforms are put into place next legislative session.”

[See update below]
Lester Leroy Bower is scheduled for execution three weeks from tomorrow, despite compelling evidence that he may be innocent.

Bower was sentenced to death for the 1983 murders of four men in an airplane hanger in Sherman. He has professed his innocence from the beginning. Nineteen years ago, in 1989, a witness came forward to claim that Bower is the wrong man. The witness says her ex-boyfriend and his companions perpetrated the killings in Sherman as part of a drug deal gone bad. (Fearing for her safety, the witness refuses to identify herself publicly.)

There is reason to think the witness may be telling the truth: Her ex-boyfriend and compatriots were accused drug dealers, and the victims may have been involved with drugs as well, according to Bowers’ attorneys, who have verified key parts of the witness’s story.

Yet this new evidence has never received a full hearing. Appeals cases are often argued on narrow points of law, which is why, in two decades of court battles, no judge has ever ruled on the new evidence in Bower’s case, Anthony Roth, one of Bower’s attorneys, told the Observer.

(For more details, check out Tim Madigan’s must-read story in Sunday’s Fort Worth Star-Telegram.)

Prosecutors in Sherman stand by their case, which is largely based on circumstantial evidence.

Bower did visit the airplane hanger the day of the murders. But Bower has said he went there to buy a glider and returned to his house in Mansfield, two hours away, long before the killings took place. Investigators became interested in Bower when they discovered phone calls between Bower and one of the victims (he claims he made those calls to arrange the glider purchase).

When investigators interviewed Bower, he lied and said he hadn’t been in the hanger that day. This was his major mistake. A search of his house turned up the glider, and prosecutors believed they had their man. But there is no evidence linking Bower to the murders or that proves he was even in Sherman around the time of the killings, according to his attorneys.

Yet he is set to die on July 22, after nearly two decades in prison.

Bower’s attorneys have three last-minute appeals to save Bower’s life. One petition sits before the Texas Court of Criminal Appeals, which will decide if a state district court can reexamine Bower’s case. The CCA — the highest criminal court in Texas — isn’t exactly friendly territory for defendants.

Roth said they have requested DNA testing of remaining evidence from the crime scene to determine if it can verify the account of the new witness. (Prosecutors filed a brief in state court last week opposing the DNA testing.)

Finally, Bower’s attorneys have also asked a state judge to delay Bower’s execution until new evidence is heard.

“It is compelling evidence. Before the state executes anyone, they need to look at that compelling evidence,” Roth said. “They clearly got the wrong person in this case.”

Update: A state district judge has postponed Bower’s execution to consider allowing DNA testing of evidence from the scene. The AP story is here.

The Texas Public Policy Foundation hosted the “Mission Redefinition at the Youth Commission” policy primer, June 25, to discuss past legislative reforms, outline priority issues facing the ’09 legislature, and determine the best future role for the TYC.

The juvenile justice experts, officials and advocates who spoke at the primer shared a common belief that, in order to reduce the more than 50 percent recidivism rate of Texas youth offenders, there must be a move to smaller, regionalized TYC facilities, an increase in community-based programs, and expansion of state mental health services.

“While we’ve made improvements, we have a whole long way to go,” said Richard Nedelkoff, TYC conservator. “The TYC population needs to decrease, but the more important thing is, we have to build up the other end, reintegration and community-based programs.”

The capacity crowd ranged from conservative to liberal organizations. The fact that the conservative TPPF hosted the meeting may indicate that this path forward for juvenile justice reform has bipartisan support.

Rep. Jerry Madden, House Committee on Corrections chairman, kicked off the discussion by evaluating the SB 103 reforms. Madden said that, while the bill resulted in some significant achievements, such as increases in TYC oversight, there were also significant failures. The most notable, he said, was the inability to reduce the state’s high recidivism rate.

There was much talk of transitioning from large, rural TYC detention centers to smaller, urban facilities, which would keep youth offenders closer to their families, increase community involvement and allow for specialized treatment.

Mike Griffiths, executive director of Dallas County Juvenile Probation, presented a model outlining these costs, and though it may pay off in the long run, this change would be a big expense for urban counties to absorb. According to Griffiths’ model, a 20-month rehabilitation cycle of 216 juvenile offenders would cost a county $11 million.

Along with the regionalization of facilities, more community-based programs are needed to keep youth integrated in society. Joella Brooks, deputy executive director of Southwest Key Programs, said that keeping youth in the community and including the families of offenders in treatment programs are the key components of successful rehabilitation.

Nedelkoff said the lack of community-based programs, like halfway houses, makes it difficult to reintegrate youth into the community and increases the length of offender stays at TYC.

Fundamental to improving the juvenile justice system are broader state mental health reforms, which could reduce the number of youth entering TYC facilities. Because Texas mental health services are unable to keep up with the state’s growing population, many youth in need are turned away for lack of available beds. As a result, they often end up at TYC instead.

Griffiths said he hears families say they were told to “get their child arrested so they can get mental health treatment.”

“I was not trained as a mental health counselor, but that is what we’ve become,” he said.

Nedelkoff said meeting the needs of youth with mental health issues is a nationwide problem that has haunted him in every state he has worked in throughout his career 29-year criminal justice career.