The Texas Observer

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.”

by Elisabeth Kristof

Remember Chris Comer, the science director over at the Texas Education Agency who was fired for emailing folks about an evolution event? Yesterday, she filed suit [large .pdf] against TEA in federal court in Austin. After all the negative publicity, the mocking editorials, the scorn of the education community, and now this - a serious lawsuit - firing Comer looks like the dumbest thing TEA could have done.

The suit alleges that Comer’s termination violated the Establishment Clause of the U.S. Constitution. What’s interesting is how the suit reaches that conclusion:

1) Creationism is a religious belief

2) The Establishment Clause forbids the teaching of religion (read: creationism) in public schools. [The suit makes liberal reference to Kitzmiller v. Dover, the landmark 2005 case in which a conservative Bush-appointed judge rejected the teaching of intelligent design as an alternative to evolution.]

3) The Texas Education Agency has a tacit policy of “neutrality” on evolution vs. creationism.

4) The”neutrality” policy is in fact an endorsement of creationism - and religion - and is unconstitutional under the Establishment Clause.

5) Comer was fired for violating an unconstitutional policy.

Conclusion: “Comer’s termination… violates the Establishment Clause of the First Amendment to the United States Constitution… because it has the purpose or effect of endorsing religion.”

Is this an air-tight argument or a real stretch? I don’t know, but the legal team representing Comer - Patton Boggs LLC - aren’t slouches. At a minimum, the suit could have a welcome salutary effect in Texas at a time when foes of evolution are regrouping.

The State Board of Education - nearly dominated by unreconstructed creationists - will soon revisit the state’s science curriculum. Certain Texas lawmakers may get ideas for the upcoming legislative session from a new law in Louisiana that opens the door to teaching creationism in schools. A high-profile court battle over evolution in Texas could suck all the oxygen out of these other efforts. Or maybe not.

by Forrest Wilder

Not even the Environmental Protection Agency was buying the border fence, according to documents released today by the Sierra Club.

In a 23-page document written in the past year about the Rio Grande Valley section of the fence, John Blevins, an EPA official, details the various reasons as to why the agency can’t rubber stamp Chertoff’s border fence plan. The first paragraph, titled “Purpose and Need,” highlights just about every question border residents have been asking for the past year.

Blevins writes:

“There is no text, studies, etc. that provide support for the Purpose and Need. There should be a section describing the amount of drug traffic that occurs along this sector, the number of illegal crossings, the number of Border Patrol responses, decreases in land values over time along the border, crime statistics, maps showing common interdiction locations, or the like. There are none in this document.”

Homeland Security officials should be answering these questions — especially when they plan on condemning private properties. Landowners such as Brownsville Resident Eloisa Tamez, 72, deserve an explanation why her land is targeted for the fence and not the River Bend Resort down the street.

But Chertoff wasn’t about to let something like a federal regulatory agency get in his way. In April — on April Fool’s Day, no less — Chertoff issued his imperial waiver of 36 federal laws — and thus bypassed agencies like the EPA and U.S. Fish and Wildlife.

In the current Observer issue, we highlight the story of Ken Merritt who worked at U.S. Fish and Wildlife for 31 years, but left the agency after refusing to sign off on Chertoff’s plan.

A U.S. Fish and Wildlife biologist recently told me that Homeland Security has created its own sham environmental assessments, since Chertoff waived the National Environmental Policy Act.

These new assessments are called the Environmental Stewardship Plan and the Biological Resource Plan. In this way, Chertoff is trying to create a patina of democracy and environmental stewardship for his border-fence boondoogle.

by Melissa del Bosque

[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 allow for DNA testing of evidence from the scene. The AP story is here.

by Dave Mann

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.

by Elisabeth Kristof

The Observer has obtained a second lawsuit - 4848 Aspermont Ltd vs. Alamo Title, et al - accusing GOP House candidate Isaac Castro of fraud. Castro is running against state Rep. Joe Heflin (D-Crosbyton) for House District 85. The courts will ultimately decide the merits of these cases. Nonetheless, the timing is bad for Castro. The first suit, in Stonewall County, is likely to go to trial in August or September, in the heat of campaigning, according to plaintiff’s attorney Travis Ware. Depositions are already underway.

Filed in Dallas County in May, the 4848 Aspermont suit is linked closely to the Stonewall County estate battle we wrote about last week. The plaintiff, a real estate vehicle called 4848 Aspermont LTD, accuses Castro of conspiring with the Hamlin National Bank, two title companies, and a handful of real estate wheeler-dealers to flip a West Texas ranch three times without disclosing pending litigation over the ranch to the buyers. (In legalese, the required disclosure is called Lis pendens.) The case is a doozy, so here’s some narrative to help explain the situation… Read the rest of this entry »

by Forrest Wilder

Today the U.S. Supreme Court refused to hear a challenge to Homeland Security czar Michael Chertoff’s all encompassing powers to waive federal laws to build a border fence, effectively ending the case.

The Defenders of Wildlife and Sierra Club had petitioned the U.S. Supreme Court. Their argument was a simple one: Chertoff, a political appointee who is not directly accountable to American voters, should not have the authority to bypass almost any federal law that he chooses.

On April 1, Chertoff waived 37 federal laws ranging from the Antiquities Act to the Native American Grave Repatriation Act.

Apparently, the U.S. Supreme Court didn’t have a problem with Chertoff’s all encompassing powers. It was a sad day for the rule of law.

Matt Clark, the southwest representative for Defenders of Wildlife, has been working on the lawsuit for more than a year. He was especially crushed that the U.S. Supreme Court didn’t even deem it necessary to explain why it declined to hear the case.

“I’ve worked for many years on some very hard environmental battles,” says Clark. “But I can say this is the first time I’ve ever been really really depressed about how our government is handling things.”

Congress gave Chertoff the power to steamroll the legal system through an obscure provision in the Real ID act, the gift that keeps on giving. Not only does it grant Chertoff unprecedented power, his waivers cannot be challenged in court. The only ray of light in a very dark judicial tunnel is a constitutional challenge to the U.S. Supreme Court, which is under no obligation to hear the case.

Both Defenders and Sierra Club say their focus is now Congress (don’t hold your breath). “Our hope is that Congress will pass something to rectify its mistake,” Clark says. “We need accountability, transparency and a government who listens to its people.”

There is also a similar challenge in a federal court in El Paso. “We still insist that this is a violation of the separation of powers and that it’s unconstitutional,” says Oliver Bernstein of the Sierra Club. The club is not involved in the El Paso case but is watching with interest. “We don’t see any reason the outcome [of the El Paso case] would be redetermined,” says Bernstein.

Clark says Defenders of Wildlife will continue to push Arizona Congressman Raul Grijalva’s legislation to repeal Chertoff’s waiver authority. To date, 49 congressional members have signed on to Grijalva’s bill doing so, including every single border legislator with the exception of two. No Republicans have signed on as of yet, however.

Clark says he watches the progress of the border fence daily in Arizona. Just the other day he visited the Organ Pipe Cactus National Monument where Chertoff is erecting an 18-foot steel wall and destroying the natural environment in the process. Building in the desert will still be easier than the logistical challenges that await them in Texas. “They have no idea what they are up against, particularly in South Texas,” says Bernstein.

At $4 million a mile, taxpayers can be rest assured the only thing our government is securing is our tax dollars.

by Melissa del Bosque