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Dateline Houston

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Houston voters last night decided to keep Mayor Annise Parker and to destroy the Astrodome. While those were the headline votes, the more interesting news came further down the ballot.

Parker, the city’s first openly gay mayor, was elected to a third term with relative ease, capturing 57 percent of the vote despite a field of nine candidates. Parker had the advantage of a strong city economy and an electorate kind to incumbents; the last four Houston mayors have served at least three terms, the current limit.

Parker’s main challenger, Ben Hall, took just 28 percent. Hall brought a formidable personal fortune to his campaign, but also a history of IRS trouble, much of it recent. That probably would have been enough, but Hall wasn’t helped by a ham-fisted media strategy, such as holding a press conference about crime rates at the site of a recent murder. Then, when the Houston Chronicle refused Halls’ request to bring outside media to attend its traditional candidate screenings, Hall cancelled 15 minutes before the event and released a statement calling the Chronicle a “megaphone for the interests of Ms. Parker and her cronies.” Bad form all around.

While all the statewide propositions passed, Harris County split the vote on two hotly debated propositions of its own. Prop 2, which lost with 47 percent, sought to issue $217 million in bonds to turn the disused but iconic Astrodome into an event and exhibition center. Early results predicted the defeat, but Twitter was still abuzz for hours with locals mourning the outcome, sharing pictures and stories of the Dome, and cursing Houston’s habit of choosing destruction over renovation.

Prop 1, to spend $70 million on a new joint inmate-processing center, passed by only 456 votes out of more than 224,000 cast. The center will be built across the street from the Harris County Jail and handle all bookings for both city and county, which advocates say will speed the process for all involved and allow more systematic application of programs providing mental health, substance abuse, and housing assistance. Critics point out that it’s a jail, that overcrowding should be solved by policy changes rather than new spending, and that the only reason it’s got a long name and so many bells and whistles is that voters rejected similar proposals in 2007 and 2009.

As expected, Houston City Council District A incumbent and certified character Helena Brown was forced into a runoff with Brenda Stardig, whom she defeated in a runoff two years ago. Brown took 38 percent of the vote, while Stardig had 29. Newcomer Mike Knox, a former police officer, got an impressive 20 percent. Knox has been critical of Brown since long before he became a candidate and seems likely to throw his support behind Stardig, suggesting Brown’s days as Houston’s watchdog against U.N. power grabs are numbered. Sad, really.

Speaking of power grabs, a controversial proposition out of Pasadena, in southeast Harris County, appears to have passed by just 87 votes. Prop 1 will make two of the city’s eight single-member districts at-large, a move critics say is intended to dilute minority voting power in the increasingly Hispanic north side. The Justice Department shot down a similar scheme there last year, but without the Voting Rights Act’s pre-clearance requirement—scuttled by the U.S. Supreme Court earlier this year—it was promptly revived. And now it has passed.

Helena Brown

Over the past few weeks, Ted Cruz has inflamed the national imagination with either presidential or revenge fantasies, depending on whom you ask and whether they work at NASA. But with the shutdown over (for now) and the Republican Party’s approval numbers hovering just above syphilis, political insiders who have a real problem living in the moment are wondering what’s next for Cruz. The infant-faced freshman senator has five years of job security left, which is probably more than some folks at NASA. But then Cruz will have to reapply for his position, and it’s anyone’s guess what his résumé will say under “Objective:”.

After all, it’s one thing to campaign on “NO.” It’s another to govern on it. But Helena Brown could have told Cruz that.

Remember Helena Brown? The freshman Houston city councilmember from District A rode from obscurity to (sort of) glory two years ago on a dry heave of tea party support, defeating the incumbent, Brenda Stardig, who’d had the audacity to vote for a drainage fee in her flood-prone district. Brown quickly made a name for herself not by accomplishing anything but by opposing things, often alone and to no effect. (Read the full Observer feature on her exploits here.)

During her first six months in office, Brown voiced the solitary “no” vote on the 16-person council more than 200 times, often for projects in other members’ districts. You can imagine how popular this made her. And she used these “no” moments to speechify, turning a vote against energy-efficient buildings into a stand for American sovereignty, and a vote against birth control for low-income women into an endorsement of teaching the Bible in schools. She also practiced one-woman obstructionism, often using parliamentary procedures to delay city business other members considered routine and necessary.

Sound familiar?

But while Cruz has years to learn whether this shtick delights voters as much in practice as it does in theory, Brown is about to find out. Houston’s municipal elections are November 5th and early voting starts Monday. All city councilmembers are up for reelection, but only Brown’s seat is considered at risk, and the ousted Brenda Stardig is back for a rematch. A third candidate is expected to force a runoff between Stardig and Brown, whose last showdown was also a runoff—with eight percent turnout.

The question, then, is whether District A likes what it got.

After all, Brown’s performance was no sneak attack. She ran on a simplistic government-bad, free-market-good platform and that’s how she governed. Brown accomplished little for her district and also had several small-time debacles during her first year: high staff turnover, accusations of altered time cards, and a bizarre, city-funded trip to Korea. But she never wavered in her opposition to the things she felt needed opposing, however little good it did. On Wednesday, for example, after failing in her solo bid to decrease the property tax rate, she abandoned the council meeting saying she needed to attend to constituent concerns elsewhere.

After Brown’s election in 2011, Houston blogger Charles Kuffner wondered presciently, “It will be interesting to see how CM-Elect Helena Brown reconciles her professed political beliefs with the sort of things that constituents tend to expect to get done.”

In a visit with the Houston Chronicle editorial board a year ago, outgoing U.S. Senator Kay Bailey Hutchison made a similar observation about Cruz. She warned that he was “going to have to choose early between being loyal to Jim DeMint and Mike Lee and the needs of the people of Texas.”

That dichotomy makes sense in the old world, where the government was considered a necessary evil instead of just evil. But in the new world, no such reconciliation may be necessary. If professing beliefs is what Brown’s base wanted—representing her constituency ideologically, rather than in negotiations over potholes and playgrounds—they got it. Cruz, too, has delivered what he promised, which was to stand up to Washington.

So will District A keep Brown? Ted Cruz might want to watch and find out.

Pasadena Mayor Johnny Isbell
Pasadena Mayor Johnny Isbell.

Well, that was quick.

Mere months after the U.S. Supreme Court declawed the Voting Rights Act by undermining pre-clearance—the process by which the Department of Justice prevented potentially racist electoral shenanigans—at least three Texas counties are trying to do exactly what the law once stopped them from doing.

In Pasadena, an entrenched mayor has proposed redrawing City Council district lines to eliminate two of the current eight districts and make those seats at-large. At-large seats have historically been used to dilute minority voting blocs by expanding the voter base to include the majority. Critics say the plan is meant to check the power of the city’s growing Hispanic north side. The Justice Department used to be one of those critics and shot down a similar scheme in Pasadena just last year, but, with the pre-clearance requirement gone, the plan has already been revived.

In Galveston, a rejected proposal to slash the number of justice of the peace districts from eight to four has also risen from the dead. The Justice Department blocked the move last year because it eliminated one of the two JP districts in which African-American and Hispanic voters constituted a majority, and because three white Galveston County commissioners hatched the idea with no input from the fourth commissioner, who is black. But with shame and originality in short supply, the Anglo trio has now trotted out the same scheme, prompting a coalition of black and Hispanic constables, justices of the peace and Galveston County residents to file a federal lawsuit.

And in Beaumont, litigation and at-large districts combined in a convoluted plot to oust three of the four black school board members from a school district that is almost half black.

In brief: During the last school board election, three white candidates lost to three black incumbents. Unwilling to let the democratic process stand in the way of their civic duty, the three losers filed candidacy papers for a special election that had yet to be announced. Then they waited for the filing deadline to pass and convinced a state court to call said special election. Obviously, the three black incumbents hadn’t announced candidacy for the seats they had just won because they weren’t tipped off about the impending special election.

The Justice Department filed a temporary injunction to halt the election, but then came Shelby Co. v. Holder, the Supreme Court decision that said Texas is no longer subject to the pre-clearance requirement. Now the losers of the Beaumont school board races are suing to replace the incumbents outright.

When the Supreme Court upheld the Voting Rights Act in 1966, it cited a “pervasive evil” committed through “unremitting and ingenious defiance of the Constitution.” While the levels of ingenuity may vary, unchecked power grabs like these will likely return to pervasion, unremitting.

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Russell Rios was 19, attending college, and working at a bank. He was also accused of stealing two iPhone cases from a Conroe Walmart in the early evening on July 31.

Conroe Police Sgt. Jason Blackwelder wasn’t on duty. He was in plain clothes but carrying a gun. When Rios broke away from Walmart staff and ran into a wooded area beside the store, Blackwelder chased him.

There, Conroe police say the two got into a “violent struggle” in which Rios choked Blackwelder until he was afraid he would pass out.

“This young man, he’s five-foot-seven, 140 pounds,” says Cade Bernsen, a lawyer for the Rios family. “String bean. And this cop is about six-foot, 190, 200 pounds. [Conroe police] said, ‘Oh, you know, he was choking the officer and the officer had to fire in self-defense.’ I just don’t see any scenario where that happens.”

Especially, Bernsen says, since Rios was shot in the back of the head.

“We have photos. That’s the only hole in his body. It’s not like there was an entry and an exit wound and you could get confused as to where he was shot,” Bernsen says. “The bullet actually went through his head and hit his forehead but didn’t come out. The bruise is on his forehead. You can see the bullet mark.”

Bernsen says he only has the photos because the funeral director who received Rios’s body that night “called the family and said, ‘Something is wrong. I’m telling you, something is strange. Do I have permission to take photos of the body before they do the autopsy?’ Which is also strange, because the body went from the scene to a funeral home and from the funeral home to a medical examiner.”

A grand jury in Conroe agreed. On Friday, it indicted Blackwelder on three counts, including second-degree manslaughter, felony tampering with evidence, and making a false report.

Blackwelder’s indictment may come as a surprise to regular readers of Dateline Houston because the last time a Harris County grand jury indicted a police officer for a shooting was in 2009. That officer—who shot an unarmed man three times in his own front yard mere seconds after arriving at a scene where no crime had occurred—was found not guilty of assault by a public servant.

Tragically, that’s not because Houston police rarely shoot unarmed people.

In June, a Harris County grand jury declined to indict the Houston police officer who shot and killed Brian Claunch, a one-armed, wheelchair-bound man with mental illness who threatened the officer’s partner with a ballpoint pen.

Last August, a grand jury cleared the Houston police officer who killed Blake Pate in events similar to the recent death of Jonathan Ferrell, a man shot by police in North Carolina as he sought help after a car accident. On Christmas Day of 2011, Pate was in a wreck while leaving his family’s home. He was unarmed, sober, and had no criminal record. A lawyer for Pate’s family told the Houston Press, “Blake appeared to be disoriented because he’d just been in a car accident. He started to the nearest streetlight. Along the way, Sergeant Curtis Hampton of the Houston Police Department intercepted him.” Hampton says a struggle ensued, he ended up on his back, and, fearing for his life, shot Pate three times.

A Texas Observer investigation found in the last six years, not a single Houston police officer has been disciplined for shooting a person or animal. It also found that although most complaints against HPD come from other officers, very few officers are punished, most punishments are written reprimands, and HPD officers—even those like Curtis Hampton—are almost impossible to fire.

Money and medicine

The elevator of the Harris County Jail has no buttons. As I step onto it with Dr. Michael Seale, executive director of health services at the jail, he continues to speak with intense focus but raises one hand in a peace sign. The two other men with us also give the peace sign. When I frown in confusion, Seale points at a surveillance camera in the elevator’s upper corner. “I’m telling them the floor we want,” he says.

Oh.

The second floor of this, Texas’ largest jail, also serves as the state’s largest mental health facility. A quarter of its 9,000 prisoners take some kind of psychotropic medication and are assigned to graduated levels of care, like at a hospital. Guards in the intermediate and acute care areas wear more casual uniforms to denote a therapeutic setting and get special training to recognize and deal with psychiatric symptoms. But while Dr. Seale and his staff are national leaders in handling the complex challenge of mental illness among prisoners, their work struggles to address the crux of the problem: Many people wouldn’t become inmates if they weren’t suffering from untreated mental illness.

Yesterday, the Wall Street Journal noted this problem with a brisk article titled, “The New Asylums: Jails Swell With Mentally Ill,” (behind paywall). The piece has some quick-and-dirty historical context and a 23-state comparison of corrections populations and spending related to mental health.

The Journal writes, “Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions.” But institutions bred abuse and neglect, so when advances in medication made it possible, social policy moved toward community-based care.

The problem is, community-based care requires facilities and public funding and those things can look like handouts. Most places didn’t fund their community-based programs well enough to meet the needs of people who once would have been institutionalized, so those people have psychiatric crises, are picked up for largely nonviolent crimes and (if they’re lucky) get treated in jail. Once stabilized and released, they still don’t have access to medication, so they relapse and end up in jail again.

Everything old is new again.

Texas ranks next-to-last in the nation in mental health funding, trailed only by Idaho. Fully 29 percent of Idaho’s inmates have a mental health problem according to the Journal’s survey of state corrections departments. Only 17 percent of Texas inmates have an identified mental health issue, which sounds pretty good until you consider that Idaho has about 7,400 inmates, total. Texas has almost 151,000.

But that number isn’t as high as it used to be. One of the contributors to Texas’ slowly dropping incarceration rates is a growth in diversion programs that address problems like addiction and mental illness.

Harris County, for example, recently doubled its number of crisis intervention response teams, which include trained deputies and mental health clinicians who answer 9-1-1 calls where mental illness may be a factor. The Harris County Sheriff’s Office reports that the teams handled more than 3,000 calls for service in the last two years.

“Helping Harris County residents with acute mental illness to heal would be reason enough to operate this pioneering program,” said Harris County Sheriff Adrian Garcia in a statement today announcing the new teams. “But CIRT also makes our community safer and saves taxpayers money by stopping the revolving door” of “jail without long-term treatment.”

Getting people who call 9-1-1 into treatment facilities instead of the second floor of the Harris County Jail is undoubtedly progress. But the question remains: When will Texas fund its community-based health care programs so that fewer of those emergency calls emerge?

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Jen Reel
a Texas inmate on Death Row

Today, in the nearly empty Texas capitol, a man who has survived two execution dates held up a 450-page report on the death penalty and shook it.

“I lost 18-and-a-half years,” Anthony Graves said. “Had this study been done 20 years ago, I probably wouldn’t be here today.”

Graves, who spent more than a decade on death row before being exonerated, was the featured speaker at this morning’s panel presenting the findings of the Texas Capital Punishment Assessment Team. The team, organized by the American Bar Association, spent two years analyzing Texas’ death penalty system.

Graves summed up their work. “We have a failed system top to bottom,” he said.

Indeed. The team, made up of lawyers, professors, a judge, a private citizen, and former Texas Gov. Mark White, identified 13 areas in which Texas fell short of best practices—or even, as Paul Coggins put it, short of “adequate practices.”

“If Texas is going to have a death penalty, it has to be the fairest one we can craft,” said Coggins, a former U.S. Attorney for the Northern District of Texas. He emphasized that while the ABA had organized the team, its members were all Texans who “looked for Texas solutions to a Texas problem.”

The Texas solution, it turns out, is to do at least some of what other states are doing—banning the execution of people with intellectual disabilities, for example, and using science to evaluate intellectual disability. Or using science at all.

“Texas can’t rely on junk science in capital cases that a judge wouldn’t allow in a slip-and-fall civil case,” Coggins said. And yet it does. For example, in the sentencing phase of capital cases, juries are first asked to decide on a defendant’s “future dangerousness,” which Coggins characterizes as “totally reading tea leaves.” Besides the unscientific nature of predicting future behavior, capital crimes in Texas are always sentenced to either death or life without the possibility of parole, meaning in neither case is a defendant going to be released into society. That makes the question of “future dangerousness” moot, but by posing it before addressing any aggravating or mitigating factors during sentencing, juries are primed to believe that if they think a defendant dangerous, the death penalty is appropriate.

Such is the granularity of the ABA report, which makes recommendations on every stage of the capital punishment system. Law enforcement should use model practices when dealing with eyewitnesses; interrogations should be videotaped; biological evidence should be safely preserved and defendants should be able to have it tested. Crime lab standards should be standardized and test results verified independently and often. Texas should use national standards for arson investigations, give juries better instructions, and provide adequate counsel for defendants in every stage of the process.

Yet even if these and all the other recommendations were all followed, Anthony Graves would not be satisfied.

“For years, we’ve asked the question, ‘Do you believe in the death penalty?’ he said. “I don’t care if you believe in the death penalty. That’s between you and your God. The question is, does the death penalty work?”

Graves held up the massive report again. “This says that the death penalty cannot work. Human error will not allow you to get it right every time. And if you can’t get it right every time, you have no right to be playing with the lives of other people.”

Jail hands

Yesterday, the Houston Chronicle reported on preliminary results from a study of the Harris County Jail which shows that inmates who can’t afford bail ultimately receive longer sentences than those who do.

The study, called Project Orange Jumpsuit, was conducted by Gerald Wheeler, a doctoral researcher and retired director of Harris County pretrial services, and Gerald Fry, an attorney. The pair contracted with a professor at the University of Texas-Arlington to randomly select a representative population of more than 6,500 Harris County defendants charged during 2012 and early 2013 and, after analyzing their pre-trial status and sentencing outcomes, came to some pretty firm conclusions. More than age, race, or the nature of the charge, the authors write, “what generally determines the defendants’ fate is his or her economic status. If the accused is unable to afford financial bail, he or she will quickly learn, in Harris County, the punishment is weeks or months of pretrial incarceration with the strong likelihood of pleading guilty for more time behind bars than their bond counterparts.”

First, let’s have a quick pretrial primer.

Say you’re arrested in Harris County, charged with a crime, given a court date and a bond amount. The amount of your bond will fall within a certain range according to the type of crime. If someone can give the county the amount in cash, you can leave. That’s called bailing out. When you show up for your court date, the county returns the money minus a small administrative fee. If no one can offer that much cash, you can turn to a bail bondsman, who promises to pay the county the bond amount if you fail to show up for court. That’s called bonding out. The net price of bond is more than bail, because bondsmen charge a higher fee, usually 10 percent of the bond, for providing that service. (For a more in-depth look at what’s wrong, in general, with the bail bond system, check out this Justice Policy Institute study from last year.)

So you already have two tiers in which, as it so often does, being poorer costs more money. If you happen to have access to $2,000 in cash at midnight on a Thursday, your pot-smoking son can come home and you’ll get most of your money back. If you don’t have that kind of dough on hand, it’ll cost you $200, which you will not get back.

But what about those who can’t afford the $200? They remain in detention until their court date or plea deal.

There is a third possibility: the personal recognizance bond. That’s when a person is released without financial obligation because they can be expected to show up for their court date. But while most major cities assign PR bonds about a quarter of the time, Project Orange Jumpsuit found that in Harris County, the practice is rare bordering on negligible. In 2012, the county only granted PR bonds in 1 percent of felony arrests and 7 percent of misdemeanor arrests. That means most people are either paying up (“bond defendants”) or being locked up (“detained defendants.”)

The study found that detained defendants had it worse all around. They were less likely than bond defendants to receive deferred adjudication or probation. And they were about half as likely to have their charges dismissed. That means in addition to having spent time in jail before their trial—which, obviously, the bonded defendants didn’t—detained defendants were likelier to get additional jail time.

Finally, among bonded and detained defendants who were sentenced to jail, the detained defendants received longer sentences. In brief, for being poor, they’re punished twice.

Project Orange Jumpsuit takes its name from the hypothesis that the clothes a defendant wears before a judge—whether the orange jumpsuit of a detainee or the street clothes of a bond defendant—heavily influence the outcome. Its authors, a doctoral researcher and an attorney, have done much to prove it. As this is a preliminary report, the completed study can be expected to garner more attention and, one hopes, address whether Harris County has an exceptional disparity problem or is merely a solid example of how the monetary bond system creates (at least) two tiers of justice.

TDCJ Pork Story Undercooked

pigs

On Thursday, the blog Grits for Breakfast reported the Texas Department of Criminal Justice is paying about $750,000 to build six new climate-controlled swine barns. That doesn’t look great, since only about a dozen of Texas’s 111 lockups are air-conditioned, and extreme heat has been blamed for 14 inmate deaths in the last six years.

Several media outlets including the Associated Press picked up the story for obvious reasons: It suggests that Texas cares more about animals than people. A deputy director for TDCJ called that comparison “outrageous.” A civil rights lawyer suing TDCJ over heat-related inmate deaths called the project “outrageous.” There’s enough outrage to go around.

The odd thing about this pig pother is that none of it is new. TDCJ has long used convict labor to breed swine for sale and prisoner consumption. It already keeps its swine in climate-controlled barns—it has to, because pigs have few sweat glands and would quickly die otherwise.

Whether TDCJ really needs new pig digs is a different question, as is whether the project is a good use of taxpayer money or just someone’s (forgive me) pork project. But state indifference to the suffering of prisoners and guards is de rigueur.

For example, in late July, the Connally Unit southeast of San Antonio lost running water for almost a week. First, both the prison’s wells broke. Then, as the Austin American-Statesman reported, the prison’s water towers ran dry, shutting down laundry facilities, showers, and kitchens. After TDCJ brought in portable toilets, writes Mike Ward, “Complaints about dysentery and illness quickly spread, though prison officials denied they were true.”

Those denials are less convincing next to the fact that the Texas Department of State Health Services had the Connally Unit boil its water for an additional five days.

The prison also lost water intermittently last year, but it doesn’t take a special event to make the facility unbearable. Even now, it has regular power outages as guards overload the circuits bringing fans from home. “My thermometer says it’s over 100 in my pocket,” said an officer from Connally to Ward. “There ain’t no damn breeze inside the unit. Just people sweating as the fans blow hot air ‘round and ‘round.”

That story, dealing as it does with simple, crude human misery, was not picked up by the Associated Press.

Last year, the 5th Circuit Court of Appeals ruled in favor of a 64-year-old minimum-security inmate who was exposed to weeks of heat indices up to 130 degrees, saying extreme heat can violate a prisoner’s rights. As Judge Carolyn Dineen King put it, “These guys are sitting in an oven . . . and no one gives a damn!” She said the health risks were “obvious” and prison staff “deliberately indifferent.”

That—the deliberateness King names—is what makes the pig barn story, unfortunately, not quite news.

Blood Draw
MadisonGuy/Flickr

When Mike Anderson won the race for Harris County District Attorney, the Houston Police Officers’ Union was delighted. Anderson promised to bring back old-school law enforcement with none of the namby-pamby resource conservation or legal hand wringing that had earned the incumbent, Pat Lykos, so much disdain. (Read here about how Anderson resumed prosecuting “trace” drug cases.)

But now that Anderson has applied his take-all-prisoners approach to drunk driving, the police union is upset. Houston, like many cities, regularly designates weekends and holidays “no-refusal” periods during which anyone suspected of drunk driving who won’t take a breath test is forced to give a blood sample. (Why drivers aren’t just forced to give a breath sample is a question for another blog.) In April, DA Anderson made the no-refusal period permanent and round-the-clock for all of Houston. And thanks to the pesky U.S. Supreme Court, which recently ruled that cops need a warrant to search your bloodstream, this takes resources.

None of the legal bodies debating this change seems to object to it as a potential erosion of civil liberties. To them, it’s all a matter of money and time, and both sides have engaged in less-than-airtight reasoning to justify their positions.

The Houston Police Officers’ Union says 24/7 no-refusals waste time because HPD officers don’t know how to handle the process efficiently. “They’re not going to be as savvy on how to do these warrants,” HPOU president Ray Hunt told the Houston Chronicle, “so it’s going to take them six to eight hours, and that means the officer is off the street for that entire time. It’s a major issue.” Notably, Hunt doesn’t say the process takes six to eight hours but that lack of officer savvy would make it take that long. But that’s weird for two reasons. One, HPD has done no-refusal weekends regularly for years, so many patrol officers are likely familiar with the process. Two, even if they aren’t, why couldn’t they be trained?

Prosecutors say the 24/7 no-refusal policy will actually save officer time because drunk driving cases involving a blood sample are more likely to end in a plea deal. That means sparing officers hours in court. Todd Keagle, chief of the DA’s vehicular crimes section, told the Chronicle, “If two officers are (in the courthouse) for six hours, for two days, that’s 24 hours of overtime.” Yes, and if three officers are in court for six hours for three days, that’s 54 hours of overtime. But most HPD patrol officers ride alone, so unless a back-up officer was also asked to testify, it seems likely that in many cases only one officer would be stuck in court. And while Keagle says judges often ask officers to stay for an entire trial, rather than just the part where they testify, that’s not standard, so it’s unclear how many hours officers are actually spending at trials that would have been avoided if the prosecution had a blood sample.

Defense lawyers say the policy change wastes resources because it would only apply to misdemeanors. In felony DWI cases, such as when someone has been seriously hurt or killed by a suspected drunk driver, blood draws are already standard if that driver refuses a breath test.

But in a letter to Byron Schirmbeck of Texas Campaign for Liberty, the DA’s office says the change won’t require any new resources at all. But even if it did, writes Assistant General Counsel Scott Durfee, “…money spent ensuring that sufficient evidence is gathered from intoxicated drivers to convict the guilty and exonerate the innocent is money well-spent.”

If any new money were being spent.

Which it’s not.

Unlike the rest of the voices in this conversation, Schirmbeck, whose group leans libertarian, also questions the policy’s cost to civil liberties. In his letter to the DA’s office, Schirmbeck asked what the county planned to do with its new influx of civilian blood. Durfee admitted that he “raises a difficult question.” “We recently asked the Attorney General for clarification on when such blood samples can be destroyed,” Durfee wrote, “and the Attorney General ruled that Texas law currently authorizes police agencies to destroy stored blood samples only in limited circumstances.”

The letter concludes, “Finally, we are not aware of any proposals to use these stored blood samples to create a DNA database.”

Texas Department of Public Safety logo

More than a year ago, the Department of Public Safety knew it had a problem. It discovered, purely by accident, that an analyst at its forensics lab in Houston had falsified the results of a drug test. DPS retested 100 of his cases and found two more errors. That was pretty bad. The lab technician, Jonathan Salvador, had worked there since 2006 and handled evidence from almost 5,000 cases from 36 Texas counties.

DPS suspended Salvador and sent a letter alerting prosecutors and district attorneys, and listing which of their cases Salvador had processed. “We believe it prudent to review his entire body of work,” the lab manager wrote in April 2012. “We are sorry for any inconvenience.” 

They couldn’t know how sorry they’d be.

In June the Texas Court of Criminal Appeals overturned the conviction of Leroy Coty, who pleaded guilty to possession of more than 400 grams of cocaine in 2010 and was sentenced to 10 years in prison. Coty’s case was important because the Harris County district attorney had videotapes of Coty with drugs and other evidence that almost certainly could have convicted him without Salvador’s lab results. If any case was going to survive being handled by Salvador’s, it was Coty’s. It didn’t.

The first Salvador-tainted convictions overturned by the appeals court were those in which all the evidence was destroyed during testing. Since an estimated 25 to 50 percent of Salvador’s cases had no surviving evidence, prosecutors knew right away that they’d be freeing a lot of guilty people—and likely had jailed some innocent ones. Most DAs took steps to notify affected defendants and allocated resources to handle the coming waves of habeas corpus writs. Then they set about retesting any leftover evidence.

But in March the appeals court set a damning precedent by ruling that all evidence that had ever passed through Salvador’s custody was unreliable. That meant even if a DA could find enough surviving evidence to retest, the court still wouldn’t consider the new results valid because, for all it knew, Salvador spent his days swapping baggies of cocaine for Fun Dip.

Worse yet, the lab Salvador worked for knew he was doing a bad job for years. A DPS investigative commission found that Salvador was asked to correct mistakes in about a third of all the tests he ran. Periodic job evaluations noted that Salvador struggled with an “overall understanding of chemistry” and that his problems were “very systemic” and his work “right on the edge” of tolerable, though not “catastrophic.”

It could probably be described as catastrophic now. Twenty cases have been overturned so far, voiding almost 160 years of prison sentences. If all of Salvador’s cases are thrown out, which is looking more likely, the lost sentences will total more than 10,000 years.

In Walker County, DA David Weeks has already given up. His office tried to retest evidence from Salvador’s cases, but the “results were haphazard,” Weeks told the Hunstville Item. “In a case where [Salvador] said there was drugs, there wouldn’t be. And when he said there were no drugs, there were drugs.

“It’s clear that all the cases [Salvador] worked on are irreparably damaged,” Weeks said. He’s already making arrangements to expunge the records of every affected defendant. “It blew up in our faces.”