Author Archives: Jolie McCullough

Houston serial killer faces execution this week

Death row inmate Anthony Shore.

Houston’s “Tourniquet Killer” is on his way to the Texas death chamber.

Anthony Shore, the confessed serial rapist and strangler whose murders in the 1980s and 1990s went unsolved for more than a decade, is scheduled for execution Wednesday evening. The courts have shot down his latest appeals that argued a traumatic brain injury decreases his culpability, and a plea for relief to the Texas Board of Pardons and Paroles was denied Monday afternoon.

Shore, 55, has been on death row since 2004, when he was convicted and sentenced to death in the 1992 rape and murder of 21-year-old Maria Del Carmen Estrada. The killing was one of four similar murders of young women and girls and one aggravated sexual assault where the girl was able to escape.

The murders took place between 1986 and 1995, according to court documents. All became cold cases in the years after the bodies of Estrada, 14-year-old Laurie Tremblay, 9-year-old Diana Rebollar and 16-year-old Dana Sanchez were found, dumped behind buildings or in a field, partially naked with rope or cord fastened around their necks like tourniquets.

Finally, in 2003, Houston police matched Shore’s DNA — on file from a 1997 no-contest plea of sexually molesting his two daughters — to Estrada’s murder, according to a court ruling. After hours of interrogation, Shore confessed to all of the killings, telling police he had an “evilness” in him.

“I think if I tell you what I’ve done that it will release the evilness, and I would feel better,” Shore told a police sergeant.

Harris County District Attorney Kim Ogg said Shore was a “true serial killer” after the trial court set his upcoming execution date in July.

“His crimes were predatory, and his victims the most vulnerable in society — women and children. For his brutal acts, the Death Penalty is appropriate,” she said in a statement.

Recently, Shore’s legal team has pointed to a previously undisclosed traumatic brain injury, likely obtained in a 1981 car accident, as a reason to stop the execution. Knox Nunnally, Shore’s court-appointed appellate lawyer, said he is not arguing that Shore is innocent or undeserving of punishment, but that courts should look at people with brain injuries the way they look at minors and the intellectually disabled — ineligible for execution based on decreased reasoning skills and culpability.

“We think if a jury had heard that evidence … that it is possible a jury could at least change their decision that Mr. Shore deserves life instead of death,” Nunnally said, referring to the alternative sentence in a capital murder conviction. “Because by no means are we claiming that … a head injury was the only reason he committed these crimes, we’re saying it was a contributing reason.”

The courts rejected Shore’s appeal and the broader argument that brain-injured people are ineligible for execution. It’s a rejection that concerns Nunnally as a combat veteran, he said.

“My fear is that if we’re denying this for Anthony Shore, what’s gonna happen if we have a combat vet who comes up five or six years from now and he has suffered a severe injury from combat?” he said. “The state’s going to use Anthony Shore’s case as an example of precedent.”

On Monday morning, Nunnally said that his team was still looking at other possible appeals in the next two days before the execution but that nothing was currently pending. If it proceeds, Shore’s execution will be the seventh in Texas this year and 21st in the nation.

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Days from execution, man convicted in prison guard’s murder insists on innocence

Robert Pruett was sentenced to death in 2002 for the murder of prison guard Daniel Nagle. Pruett says he was framed by corrupt guards and inmates while the prison employee union says chronic understaffing led to Nagle's murder.

A man convicted in the 1999 murder of a Texas prison guard faces execution Thursday for the sixth time in a case where DNA testing has taken center stage.

Robert Pruett was sentenced to death in the stabbing of Daniel Nagle, a 37-year-old guard at a prison in Beeville. Pruett was a 20-year-old inmate serving a 99-year sentence at the time for being an accomplice in a murder committed by his father when he was 15.

Nagle was found lying in a pool of blood, stabbed repeatedly with a makeshift knife next to a torn up disciplinary report he had written on Pruett, according to court records. The prosecution argued that Pruett killed Nagle in retaliation for the report, and the jury agreed, but Pruett has consistently denied his involvement in the crime. He said he was framed by corrupt guards and inmates, and his lawyers have argued against the testimony used at trial.

“The only supposed eyewitness testimony came from inmate informants. Such so-called snitch testimony is notoriously unreliable,” wrote attorney David Dow in Pruett’s latest filing to a federal appellate court.

For years, he has sought multiple rounds of DNA testing on clothes, the weapon and the torn-up report in an attempt to prove his innocence. It has saved him from execution multiple times since 2013.

But in April, the Texas Court of Criminal Appeals finally ruled that the results of two rounds of DNA testing were inconclusive and therefore would not have changed the result of his conviction. A new execution date was set for Oct. 12.

“You’ve got to have faith in your juries and the many courts that have scrutinized the evidence and the claims here, and I just don’t see any room for there being a claim of innocence here,” said Jack Choate, executive director of the Special Prosecution Unit, which prosecutes Texas prison crimes.

Still, Pruett is fighting.

The Court of Criminal Appeals and U.S. Supreme Court denied his latest claims in state court last week, but he has also sued in federal court, claiming recent refusals by the trial court and prosecution to proceed with further DNA testing violates his due process rights.

The DNA evidence that was tested and deemed inconclusive by Texas’ high appellate court needs more examination, Pruett argues in court filings. The testing looked primarily at the murder weapon, where a partial female profile had been found in the latest examination.

Pruett argues that the court should further investigate the profile, to see if it could identify a culprit, but the state argued the weapon was likely contaminated by people on the defense team and journalists who have handled it without gloves since the trial. The court denied further testing.

“Even if there were contamination, that conclusion would only demonstrate that the State had violated another provision of state law by failing to ensure the weapon is properly preserved,” Dow wrote to the court.

Pruett’s latest federal appeal was rejected by the appellate court Friday, but he could still appeal to the U.S. Supreme Court. Choate said that he expects the execution to proceed.

“I would be surprised to see the courts take a different position this late in the game,” he said.

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Appellate judges show concern over Harris County bail practices, court ruling

Harris County judges and bail bond companies are fighting against court-ordered changes in the county's bail system. 

NEW ORLEANS — A panel of three federal appellate judges seemed concerned Tuesday morning with Harris County’s bail practices concerning poor misdemeanor defendants, but they also questioned a lower judge’s ruling that changed the county’s system.

The 5th U.S. Circuit Court of Appeals in New Orleans held an hour-long hearing on the pretrial system of Texas’ most populous county, where arrestees who can’t afford their bail bonds regularly sit in jail — often until their cases are resolved days or weeks later — while similar defendants who have cash are released. Harris County is fighting an April ruling in which U.S. District Judge Lee Rosenthal called the county’s bail practices unconstitutional and ordered the release of almost all misdemeanor defendants from jail within 24 hours of arrest, regardless of their ability to pay their bail amount.

Charles Cooper, the attorney representing Harris County judges, spent most of his time in front of the judges arguing that the federal courts weren’t the right arena for the current bail fight. He said inmates requesting release from jail need to go through state courts first. Judges Edward Prado and Catharina Haynes seemed unconvinced of the argument.

“Is your concern that Judge Rosenthal didn’t let the state get the first bite of the apple?” Haynes asked. “By the time you got to federal court, your entire sentence as a misdemeanor defendant would be complete, I would guess.”

Most misdemeanor defendants in Harris County who are released from jail before their trial are released on money bail — where a judicial officer sets a cash amount to ensure a defendant returns for future court hearings. In her ruling, Rosenthal said the county denied poor defendants due process by usually ignoring recommendations to release defendants on personal bonds, where no money is due, even though they couldn’t afford money bail.

The judges repeatedly peppered Cooper with questions about the county’s probable cause hearings, in which judicial officials called hearing officers hear the charges against a defendant, evaluate reports from pretrial interviews and occasionally alter bail. The plaintiffs have argued that defendants are not allowed to speak at these hearings, which Haynes and Prado jumped on.

“They’re called hearing officers. Is there a hearing or do they just look at the form and make a decision?” Prado asked.

When Cooper contended that they did, Haynes cut him off: “But they can’t speak. What is a hearing if you’re not going to listen?”

Judge Rosenthal’s ruling was groundbreaking. In it, she ordered that all misdemeanor defendants who sign an affidavit claiming they can’t afford their initially-set bail bond amount must be released on a personal bond. She also said all those indigent defendants must be released within 24 hours of their arrest, regardless of whether they’ve had their probable cause hearing. If inmates arrived to the Harris County jail from an outlying facility after 24 hours of their arrest and they hadn’t had their hearing yet, the sheriff was ordered to release them on a personal bond. Haynes said she was “shocked” by that order.

“It seems chaotic to say a sheriff can ignore a court order,” she said.

She also questioned the time frame of 24 hours.

“Why not 48 hours? Or 72, or even 96? Where is the magic of 24 hours other than the Texas law to find probable cause, which you’re not challenging?” she asked attorney Alec Karakatsanis of Civil Rights Corps, who was representing the former inmates.

Karakatsanis said the time frame aligned with the state law, and mentioned defendants who lose their job, car and insurance while detained in jail.

Throughout the appellate hearing, judges questioned what was happening in the county since the injunction.

In his argument, Cooper cited multiple county reform efforts that have taken place since the court order took effect in June. In July, the county began using a new risk assessment tool to better recommend to judicial officers setting bail when low-risk offenders should be released on personal bonds. He said, though no data has been recorded in the court, that release on personal bonds has increased.

Haynes questioned whether it was worth sending the case back to the lower court to find new facts since the reforms have taken place. Karakatsanis argued the new facts are unknown, and that there is nothing in the court record to corroborate Cooper’s statements.

County Judge Darrell Jordan, the only Harris County judge who rejected money bail for indigent defendants before the ruling, was at the arguments and said afterward that he wished there were an opportunity to talk about the system under the changes. Overall, he said, the process hasn’t changed. 

“If it is sent back to the lower court, then the numbers will show what is going on,” he said. “People are still being placed in jail and they can’t afford to get out.”

It is unknown when the judges will make a decision whether to uphold Rosenthal’s ruling, overturn it or send it back to the lower court. But after the ruling, Karakatsanis said he was optimistic the court will stand by Rosenthal’s injunction.

“The order that they’re appealing from is based on very solid evidence, and they’re asking for it to be overturned,” he said. “You can’t just come in front of higher courts and say, ‘Well, facts are totally different from what happened…’ without any citation.”

Harris County officials wouldn’t comment on the arguments, but on the courthouse steps, John O’Neill, an appellate attorney for the county, said more defendants skipped court dates after the injunction and before the flooding caused by Hurricane Harvey.

“If this [lawsuit] succeeds, the criminal justice system in every state in the United States will be thrown into chaos,” he said. “The order has actually produced far more chaos than the flood has.”

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How Harris County’s federal bail lawsuit spreads beyond Houston

County officials and bail bond companies throughout the state are monitoring the federal lawsuit against Harris County's bail practices.

The next chapter in Harris County’s saga over bail practices is set to play out in federal court Tuesday morning, and officials involved in pretrial processes throughout Texas are holding their breath.

The state’s most populous county is involved in a complicated fight over how its bail procedures impact poor misdemeanor defendants awaiting trial. A federal lawsuit questions the constitutionality of the county’s pretrial system, where arrestees who can’t afford their bail bonds regularly sit in jail — often until their cases are resolved days or weeks later — while similar defendants who have cash are released.

Bail is a legal mechanism to ensure defendants appear in court for their hearings. The most common practice is secured money bail, where judicial officers set a bond amount that must be paid by defendants in order to be released. The bond can either be paid to the court in full and then refunded after all court appearances are made, or, more commonly, paid through a bond company that charges a nonrefundable percentage — usually around 10 percent — but will front the total cost.

Last year, inmates filed suit against Harris County, saying they were wrongfully detained in jail simply because they were too poor to pay their bail bonds. The lawsuit covers all indigent defendants arrested on misdemeanors, like driving with an invalid license or shoplifting.

In April, U.S. District Judge Lee Rosenthal issued a groundbreaking ruling, calling Harris County’s bail practices unconstitutional and ordering the release of almost all misdemeanor defendants from jail within 24 hours of arrest, regardless of their ability to pay the bond amount. The county, which has implemented many of its own reforms since the suit’s filing, has appealed the injunction at the U.S. 5th Circuit Court of Appeals, where oral arguments will be heard in New Orleans on Tuesday.

“At a minimum, the litigation in Harris County is going to change the dialogue, if not the policy, of all other Texas counties on [personal] bonds.”

— Michael Young, Bexar County’s Chief Public Defender

The ruling came down while the Texas Legislature worked — and ultimately failed — to pass bipartisan statewide reform for pretrial release practices. Some cities and states across the country have reformed their bail programs, either on their own or after court rulings, to move away from money bail bonds and release more defendants on personal recognizance bonds, where inmates are released with no money due up front.

These reforms have taken place in jurisdictions that, like Harris County, routinely used money bail as “de facto detention orders against those financially unable to pay,” Rosenthal wrote in her ruling.

Both sides of the lawsuit recognize the legal outcome in Harris County could have nationwide repercussions for the American bail system. In Texas, counties with wide variations of pretrial practices are measuring their programs against the federal injunction.

“At a minimum, the litigation in Harris County is going to change the dialogue, if not the policy, of all other Texas counties on [personal] bonds,” said Michael Young, Bexar County’s chief public defender.

A question of due process

Jail population reports show that almost 75 percent of people in Texas jails have not been convicted. Bipartisan efforts to lower the rising number of poor defendants stuck in jail was a main topic of Texas Supreme Court Chief Justice Nathan Hecht’s address to the Legislature in February.

“Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing,” he said. “Though presumed innocent, they lose their jobs and families, and are more likely to reoffend.”

Hecht spoke as Harris County, the third largest in the nation, was embroiled in a lawsuit where a judge has now said it uses bail bonds to detain poor defendants without necessary due process safeguards. Under state and federal law, indigent misdemeanor arrestees can be detained on money bail “only in the narrowest of cases, and only when, in those cases, due process safeguards the rights of the indigent accused,” Rosenthal wrote.

“Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing. Though presumed innocent, they lose their jobs and families, and are more likely to reoffend.”

— Texas Supreme Court Justice Nathan Hecht

Before the court order, 40 percent of Harris County misdemeanor defendants remained in jail until their case was resolved, according to data from 2014 to 2016. The large majority of those people — 84 percent in 2015 and 2016 — pleaded guilty at the first opportunity and were usually released within a day based on time served, according to Rosenthal’s ruling. Just less than half of defendants who were released on bond pleaded guilty during the same time. New numbers since the ruling were not yet available.

The county argues that its practices are constitutional because, under state law, a defendant’s ability to pay is only one of five factors to be considered when setting bail. Other things the county must consider are the nature of the crime and public safety.

“This newly-minted constitutional right to affordable bail applies to every misdemeanor arrestee, with minor exceptions, no matter how great their flight risk or how grave a danger they pose to the community or their victims,” wrote Charles Cooper in the county judges’ brief to the appellate court.

Rosenthal countered that argument by pointing out that even after county officials recommend release on personal bonds for misdemeanor defendants, based on their risk level of reoffending or skipping court dates, judicial officers usually ignore the recommendation and stick to a pre-set bail schedule.

Multiple complexities have entangled the lawsuit. The county sheriff — a defendant in the lawsuit — was ousted in the last election and replaced by a successor largely in support of bail reform. And the county has implemented reforms of its own, including a new tool that will quickly identify low-risk defendants and recommend them for release on personal bonds, regardless of income.

Though Rosenthal applauded the county for its reform efforts (which were not yet implemented at the time of the ruling), she has said the problem of unequal treatment for poor defendants would still exist. Lack of money would still be an issue for moderate and high-risk defendants, and officials would still have discretion to ignore the recommendation of release on personal bond for low-risk people, she said.

Her orders went into effect in June, and hundreds of defendants were released from the Harris County Jail. The county’s reforms took place at the end of July, and officials could not yet give specifics on results.

“This newly-minted constitutional right to affordable bail applies to every misdemeanor arrestee, with minor exceptions, no matter how great their flight risk or how grave a danger they pose to the community or their victims.”

— Charles Cooper, attorney for Harris County judges

County attorneys and the bail bond commercial industry say the order goes too far, and they are asking the federal appellate court to toss out the injunction and the case overall. They argue that the issue isn’t one for federal courts and that the lawsuit is an attempt to get rid of money bail altogether.

“Defendants who cannot post bail are not detained because they are poor,” wrote attorney Paul Clement in a court brief filed by local, state and national bail bonds groups. “Instead, they are detained because the government had probable cause to arrest and charge them with crimes, and wishes to secure their appearance at trial and protect the community.”

Beyond Harris County

Harris County is not unique in its imposition of bail bonds on poor defendants.

Pretrial practices vary widely by county, but almost all in Texas rely primarily on money bail to release defendants, according to a study from Texas A&M University’s Public Policy Research Institute. Harris County is one of the few that uses a validated risk-assessment tool to determine whether defendants should be released without paying.

Texas’ proposed legislation this year, which passed out of the Senate but died before being brought to the full House for consideration, would have required counties to use a risk-based tool to determine bond.

“The basic underlying system in a lot of the other larger counties have the same fundamental flaws that Harris County does,” said Jay Jenkins, the Harris County project attorney for the Texas Criminal Justice Coalition. “If you’re using money bail for misdemeanor cases, and you’re not explicitly having a determination of whether or not a defendant can make a particular amount, those counties are going to be susceptible to litigation after this ruling.”

Changes have already started. Dallas County authorized the creation of a pretrial division and risk-based bail system this year, and Bexar County judges changed their practices to make all defendants eligible for a personal bond assessment, according to Young.

But most Texas counties don’t have programs to monitor defendants released on bond, according to the Texas A&M study, and others, like Tarrant, are watching and waiting.

“My county is aware of what’s going on with Harris County,” said Michelle Brown, pretrial services director in Tarrant County, which primarily uses money bail. “We’re talking about implementing a risk assessment at the county, but we’re still in the talking stages. Unfortunately, we don’t make policy, our judges and county commissioners do.”

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Texas teens to be trained next year on police interactions

An Austin police officer pulls over a vehicle on August 28, 2017.

High schoolers, new drivers and police officers are all set to receive training in how to act during police interactions under a new state law that went into effect this month. But don’t expect these courses to start right away  — officials have barely begun creating them, and the courses are scheduled to begin next September.

Senate Bill 30 was pitched to Texas lawmakers amid a growing rift between communities and law enforcement after several fatal police encounters. It came after the death of Sandra Bland, a 28-year-old woman who was found hanged in her jail cell three days after a heated traffic stop led to her arrest, and also followed the fatal shooting of five Dallas police officers during a protest of violent police encounters.

“There’s a lot of tension in terms of interactions between law enforcement and citizens in traffic stops,” said Sen. Royce West, D-Dallas, who authored the bill. “We’ve seen some fatalities and we’ve seen people pointing the finger at one another.”

West said he hopes some of that tension will be relieved by teaching the different groups what is expected of citizens and police during interactions, primarily traffic stops.

Next September, Texas’ public high school curriculum, driver’s ed classes and training for new and veteran police officers must include instructions on the role and duties of police officers, individuals’ rights during a police interaction, proper behavior for both citizens and cops, laws on questioning and detention by police and how to file a complaint or compliment.

The Texas Department of Public Safety already established suggested actions during traffic stops in its latest version of the Texas Driver Handbook, which was released last week. The changes include keeping one’s hands near the steering wheel and not reaching into the glove box for one’s driver’s license or proof of insurance until talking to the officer. The book also adds a section explaining that drivers can ask to leave if they’re being held at a traffic stop for an extended period of time and they can decline search requests if there is no probable cause.

The wording in the handbook will “serve as a base foundation for the educational curriculum that will be developed as a result of Senate Bill 30,” according to a DPS news release.

The law gave officials the extra year for implementation so they could coordinate training to ensure teens, drivers and police officers are all learning the same thing, West said. A committee to design the courses includes representatives of DPS, the State Board of Education and the Texas Department of Licensing and Regulation.

“We’re going to get together to establish the topics that would be required for one to build a course and administer it so that we have some uniform courses out there,” said Ray Pizarro, director of education and examinations for TDLR. “We don’t want somebody doing one thing and somebody doing the other thing.”

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Texas executes man who claimed his lawyers committed fraud

TaiChin Preyor was sentenced to death in the 2004 slaying of Jami Tackett in Bexar County.

After more than 12 years on death row, a San Antonio man convicted in a fatal stabbing was executed Thursday night. It was Texas’ fifth execution of the year.

TaiChin Preyor, 46, had filed a flurry of appeals in the weeks leading up to his execution date, claiming his trial lawyer never looked into evidence of an abusive childhood and his previous appellate counsel — a disbarred attorney paired with a real estate and probate lawyer who relied on Wikipedia in her legal research — committed fraud on the court.

But he lost all of the appeals, with the U.S. Supreme Court issuing a final ruling in the case more than two hours after his execution was originally set to begin. At 9:03 p.m., he was injected with a lethal dose of pentobarbital in Texas’ death chamber and pronounced dead 19 minutes later, according to the Texas Department of Criminal Justice.

In his final words, he mentioned his love for his wife and kids and cited a Coretta Scott King quote, saying, “Justice has never advanced by taking a life,” according to TDCJ.

Preyor was accused of breaking into 20-year-old Jami Tackett’s apartment in February 2004 and stabbing her to death. He was found at the scene by police covered in her blood. Preyor claimed the killing was done in self-defense after a drug deal gone bad, but the jury was unconvinced. He was convicted and sentenced to death in March 2005.

No witnesses for Preyor or Tackett attended the execution, according to TDCJ spokesman Robert Hurst.

During his latest appeals, Preyor’s attorneys argued that his trial lawyer, Michael Gross, was inadequate because he didn’t present evidence of a physically and sexually abusive childhood that could have swayed a jury to hand down the alternate sentence of life in prison.

“[The jury] did not learn that Preyor jumped from a fourth floor balcony as a teenager, breaking both his ankles in the fall, to escape his mother as she chased him with a knife,” attorneys Hilary Sheard and Cate Stetson wrote in a filing to the Texas Court of Criminal Appeals. “… Any competent counsel would have recognized the importance of uncovering these harrowing details and presenting them to the jury responsible for recommending a life sentence or a death sentence.”

Gross countered in an affidavit to the court that he interviewed many family members, friends and even Preyor himself and was never told of any abuse.

Preyor’s latest appeals also slammed his previous appellate lawyers, saying they committed fraud on the court by hiding the involvement of a disbarred attorney and asking for payment from the court when the family had already paid them. Preyor accused the disbarred (and now deceased) Philip Jefferson of misrepresenting himself as “retired” when Preyor’s mother approached him to take the case. They said Jefferson orchestrated the defense and recommended Brandy Estelle, a real estate and probate attorney, to file documents to the court. Estelle didn’t respond to requests for comment in the case.

“In an extraordinary fraudulent scheme, one lawyer who had been disbarred more than 20 years earlier and another lawyer who had never handled a death penalty case and relied on Wikipedia charged Mr. Preyor’s mother and the courts duplicative payments, while providing astonishingly incompetent ‘representation,’” Sheard and Stetson wrote in a statement Thursday afternoon.

Texas and Bexar County denied the fraud allegations and said the delays in Preyor’s case have been made “at the expense” of Tackett’s family. The courts agreed.

“The only fraud on the court alleged is that neither Preyor nor the court was aware that Jefferson was disbarred. To the point, the alleged fraud on the court is not that someone other than Estelle was orchestrating the case; it is not even that the case was poorly orchestrated. Instead, the alleged fraud on the court is the specific concealment of Jefferson’s disbarment from the court. It is difficult to see how this form of concealment affected the judgment of the district court,” said the denial from the 5th U.S. Circuit of Appeals issued Thursday.

The appellate court also criticized Preyor for filing his latest appeals in federal court 10 days before his scheduled execution even though his current attorney has been on the case since 2015. The court wrote that the “claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.”

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Set for execution, death row inmate alleges legal fraud in hopes of a stay

TaiChin Preyor was sentenced to death in the 2004 slaying of Jami Tackett in Bexar County.

With two days left before TaiChin Preyor’s scheduled execution, his lawyers have tried just about everything to stop it. That includes alleging that his previous counsel — a disbarred California attorney and a probate and real estate lawyer who reportedly relied on Wikipedia to research Texas legal procedure — committed fraud against a federal court.

So far, they’ve had no luck.

Preyor, 46, is set to be executed Thursday night for the 2004 killing of a 20-year-old San Antonio woman during a home invasion. If he doesn’t receive a stay, it will be the state’s fifth execution of the year — and end the unusually long four-month lull in Texas’ death chamber.

In recent weeks, Preyor’s attorneys have filed a flurry of pleas, with the Texas governor and in state and federal court. They have argued Preyor should be spared the death penalty because his original attorney overlooked an abusive childhood and because his appellate attorneys were incompetent.

“Even if you are someone who believes that there is a role for the death penalty to play with respect to certain crimes, there has to be a baseline there that the person … was capably and competently represented throughout all of his proceedings,” said Cate Stetson, one of Preyor’s current attorneys. “And that baseline clearly was not met here.”

On Monday afternoon, both the Texas Court of Criminal Appeals and a federal district court rejected Preyor’s requests for a stay. Preyor will appeal now to the 5th U.S. Circuit Court of Appeals.

Texas and Bexar County have requested that the execution proceed, noting that it “has been postponed for over a year in order to accommodate [Preyor] and his attorneys, but at the expense of the victims and the state’s interest in finality.”

In court, Bexar County prosecutors accused Preyor of breaking into Jami Tackett’s apartment in the early hours of a February morning. Tackett was in bed with Jason Garza, who testified that Preyor attacked and stabbed him before he ran away to call for help. With Garza gone, Preyor stabbed Tackett multiple times, killing her. He was arrested at the scene covered in her blood.

Preyor claimed he acted in self-defense. In a statement to police, he said Tackett, who sold him drugs, had invited him over and ambushed him with Garza. Preyor said he pulled out his knife after the two began attacking him and that he didn’t intend to hurt Tackett “that bad.”

A jury was unconvinced. They found him guilty and sentenced him to death.

Preyor’s current attorneys aren’t focusing on his conviction but on his death sentence. They argue the lawyer who represented Preyor during his sentencing, Michael Gross, failed to present evidence about Preyor’s abusive childhood, which they argue could have swayed a jury to give him life in prison.

“Gross failed to hire a mitigation specialist, failed to investigate known red flags regarding Preyor’s childhood, neglected to interview family members regarding Preyor’s childhood and social history, and neglected to follow up on not one, but two, medical professionals’ recommendations that Preyor be screened for mental illness or other executive-function issues affecting his capacity and judgment,” Stetson and attorney Hilary Sheard wrote in a filing to the Texas Court of Criminal Appeals last week. “The cumulative effect of these omissions was disastrous.”

But Gross said in an affidavit filed to the court that he “adequately” represented Preyor, and talked to many family members, school officials, friends and even Preyor himself, none of whom mentioned abuse. “If they had given me any such information, I would have developed that evidence and presented it as mitigation at trial,” Gross said in his affidavit.

Sheard and Stetson argue concerns about Gross’ representation should have been raised during Preyor’s appeals. Preyor blames this on his unusual appellate lawyers.

After becoming frustrated with Preyor’s court-appointed lawyer during his post-conviction appeal, Preyor’s mother turned to Philip Jefferson, a disbarred California attorney who claimed he was retired, according to Preyor’s most recent court filing. Preyor claims Jefferson did most of the heavy lifting in the case and had Brandy Estelle, a California attorney who specialized in probate and real estate law, file documents to the court.

Estelle relied on Wikipedia to research Texas habeas procedures, Preyor alleged, and Preyor’s appeals were denied in federal court.

“The federal habeas petition filed in this court … was so abysmal that it subsequently became an exemplar, circulated among habeas attorneys, as an example of what not to do,” Preyor’s attorneys wrote.

Preyor also alleged that Estelle committed fraud against the court by hiding Jefferson’s role and requesting payment for her legal services from the appellate court, even though Preyor’s family had already paid her.

Estelle did not respond to requests for comment for this story, and Jefferson could not be reached for comment. But on Monday afternoon, a federal court dismissed that fraud allegation, saying Estelle “competently represented” Preyor.

“There has been no showing of any attempt to defile the court, much less egregious misconduct that rises to the level of bribery or fabrication of evidence,” District Court Judge Fred Biery wrote.

Preyor has also requested that the Texas Board of Pardons and Paroles and Texas Gov. Greg Abbott grant him clemency and commute his sentence to life in prison. The board is expected to vote on his case Tuesday afternoon, but rarely recommends relief to the governor. Abbott has not stopped an execution since taking office in 2015.

“Mr. Preyor experienced severe sexual and physical abuse as a child, but that compelling mitigation evidence has never been heard by any court,” Stetson said Monday evening after the court rulings. “The appellate courts or the Governor should allow Mr. Preyor the opportunity to be represented by capable, competent, and licensed attorneys before his execution proceeds.”

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Heat is part of life at Texas prisons, but federal judge orders one to cool it

Prison staff and inmates move through the Darrington Unit's main hallway on Wednesday, July 12, 2017.

ROSHARON — Just 30 miles south of the urban epicenter of Houston, the scene around one of Texas’ oldest maximum-security prisons has a much more rustic quality.

The brick buildings of the prison have been part of the rural landscape since 1917 and sit among acres of farmland at the end of a long, tree-lined road. Prison officials clad in boots and cowboy hats patrol the grounds on horseback, and inmates are hauled in from work duty in the fields on a wagon hitched to a tractor.

On a recent muggy July morning, visitors and staff at the main gate dropped their identification into a cloth bucket attached to a rope pulley so the guard in the tower could hoist up their cards and approve their entry.

Inside the prison’s main hallway, industrial fans roared against the heavy air. The Darrington Unit, like almost 75 percent of the state’s prisons and jails, has no air conditioning in the inmate’s living areas.

The Darrington prison sits among farmland at the end of a long, tree-lined entrance.
The Darrington prison sits among farmland at the end of a long, tree-lined entrance. Jolie McCullough / The Texas Tribune

The lack of cooling in Texas prisons has thrown both controversy and an ongoing class-action lawsuit onto the Texas Department of Criminal Justice. Inmates at another Texas prison claim that the heat constitutes cruel and unusual punishment and argue that prison housing should be kept at a maximum of 88 degrees.

On Wednesday, a federal district judge in Houston agreed, issuing a scathing order against the department and ordering that air conditioning be provided for medically-sensitive inmates at the Pack Unit southeast of College Station within 15 days. 

“Each summer, including this one, Plaintiffs face a substantial risk of serious harm from the sweltering Texas heat, and Defendants have been deliberately indifferent in responding to this risk,” Judge Keith Ellison wrote in his 101-page ruling.

The injunction was a big victory for the inmates at the Pack Unit, but the case isn’t over. The state announced Wednesday afternoon it would appeal the judge’s temporary order, which expires after 90 days.

An appeals court is considering whether the underlying lawsuit can remain a class-action and apply to the entire prison instead of only the plaintiffs. But Ellison said in his Wednesday ruling that the plaintiffs are “likely” to succeed when the case goes to trial, which would result in permanent changes at the unit. Jeff Edwards, an attorney for the Pack Unit inmates, said he expects the trial to begin later this year.

Edwards said Wednesday’s ruling was “significant” and “makes it clear that the Constitution applies to everybody, which I think is important and frankly can’t be said enough.”

In a statement, Texas Attorney General Ken Paxton said expensive air conditioning systems are “unnecessary and not constitutionally mandated.”

“The judge’s ruling downplays the substantial precautions TDCJ already has in place to protect inmates from the summer heat,” Paxton said. “We’ll appeal the decision and are confident that TDCJ is already doing what is constitutionally required to adequately safeguard offenders from heat-related illnesses.”

It's also hot at the women's prison...

Fans and ice water

Most of the inmate plaintiffs in the lawsuit, filed in 2014, have medical conditions or are taking medications that makes hot summer days more dangerous.

The lawsuit points to 23 deaths and hundreds of illnesses related to heat in Texas prisons since 1998 and says that elderly, disabled and “medically sensitive” inmates — including those with heart disease, diabetes and obesity, or those taking medications like anti-psychotics that impair the body’s natural cooling system — should be protected from extreme heat.

Judge Ellison ruled that those inmates should have air conditioning.

TDCJ has maintained that there are sufficient measures in place to safely cool inmates.

“The safety and security of not only our staff, but our offenders that we are charged with overseeing is paramount to us,” TDCJ spokesman Jason Clark said from an office inside the Darrington Unit last week. “So we take numerous precautions to ensure that we mitigate those extreme temperatures. And we believe those mitigating efforts are effective.”

The department does have a number of measures in place to combat the heat and humidity in Texas prisons, including unlimited ice water, personal fans, wellness checks for high-risk inmates, and access to “respite” areas with air conditioning — like the chapel or classrooms. Clark said they are continuously monitoring and updating heat protocols each year.

“Each summer we continue to refine our processes better and better,” Clark said.

Hear Darrington inmate John Rago speak on living at a Texas prison in the summer heat.

At Darrington, inmates excitedly mentioned the new addition of large fans in the main hallway and the relatively recent addition of unlimited ice water.

“Now that we’ve got the ice coolers and the new fans, compared to eight years ago it’s a whole lot better,” 29-year-old Anthony Brown said as he cooled off before getting his weekly haircut in the air-conditioned barbershop. Brown has served nine years of a 45-year murder sentence, according to TDCJ records.

Still, there was no denying the heat and humidity building within the prison walls by mid-morning. In the cells, men lay on their beds in boxers with personal fans pointed at them. After about two hours in the prison, Clark indicated it was time to leave and joked to the warden that he “only brought one shirt.”

In his ruling on the Pack Unit, Judge Ellison called the steps taken by the department “the bare minimum.”

“They have implemented mitigating measures that they know, or should know, are ineffective given the extreme heat at the Pack Unit, and they have failed to consider seriously the many more effective options available to them,” he wrote.

Aside from air conditioning for higher-risk inmates, Ellison’s injunction also requires the temporary addition of new window screens in all housing areas so inmates can let in fresh air without being harassed by mosquitoes and other insects.

The injunction also orders the department to implement a plan of action for heat waves, citing the heat-related deaths of at least 10 TDCJ inmates during a heat wave in 2011, according to the ruling.

Cost estimates vary for air conditioning

In the end, the argument comes down to money. TDCJ said that retrofitting the Pack Unit — built in 1983 — to include air conditioning would be an “undue burden” on the state, according to their court filing. The state has spent more than $2.1 million defending the lawsuit as of May, according to records from the Attorney General’s Office.

“Prisons built in the eighties and nineties, which were specifically approved by the federal courts…didn’t include air conditioning because of the added construction, maintenance and utility costs,” the department said in its official statement on the ongoing lawsuit.

Estimates for adding air conditioning to the prison vary enormously. In the June hearing, an expert put the cost at $450,000 to install units for the housing areas, and $175,000 in annual costs, according to the plaintiff’s filings. A study contracted by TDCJ put the bill at more than $22 million to install air conditioning in all of the unit, and $477,678 a year to operate.

To install temporary air conditioning for only this summer, the prices differed from the plaintiffs’ expert’s estimate of $108,000 to the state’s $1.2 million.

The judge’s ruling called the state’s estimates “overstated,” and Ellison said TDCJ’s large budget should be able to cover the expenses. As a cost-saving option, he said the prison could “re-configure areas that are currently air conditioned to accommodate the heat sensitive, or move them to other facilities in Texas.”

Inmates shuffle past new fans in the Darrington prison's main hallway on a hot July day.
Inmates shuffle past new fans in the Darrington prison’s main hallway on a hot July day. Jolie McCullough / The Texas Tribune

“Even if the remedies ordered would be ‘fiscally catastrophic’ for TDCJ, as Defendants maintain they are, the Fifth Circuit has held that ‘inadequate resources can never be an adequate justification for depriving any person of his constitutional rights,’” he added.

And if the courts eventually rule that the state needs to spend the money to permanently install air conditioning at the Pack Unit, will that lead to similar rulings for the other 77 of Texas’s 106 prisons that lack air conditioning for inmates?

Edwards, the plaintiffs’ lawyer, said while the lawsuit only applies to the one prison, the reasoning behind the lawsuit could “easily apply to any if not all” Texas prisons.

The heat wave continues…

“The Pack Unit is not an anomaly in terms of how hot it gets,” he said.

But that decision won’t be made for a while. Meanwhile, the inmates at Darrington and most other Texas prisons have to deal with the heat.

Robert Stewart, a bald, quiet 50-year-old murder convict with one eye, got a break from the heat of his prison cell awaiting a church service in the prison’s high-ceilinged and air-conditioned chapel.

“After a while you adjust to it,” Stuart mumbled while holding a manila folder labeled “Anger management.” “You don’t have much of a choice, you just have to accept it. It’s not something I’d recommend to anyone.”

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Why the murder charge against the Texas police officer who killed Jordan Edwards is rare

15-year-old Mesquite High School freshman Jordan Edwards (left) was shot and killed by Balch Springs police officer Roy Oliver on April 29, 2017.

A Dallas County grand jury indicted a former Balch Springs police officer on a murder charge Monday in the shooting death of an unarmed black teenager, an exceedingly rare legal step in Texas that illustrates the controversy surrounding the shooting since details of it rocked the community in April.

Though news of police shootings has become commonplace in Texas and throughout the nation, disciplinary action against an officer isn’t typical and a murder indictment is almost unheard of. It takes overwhelming evidence for investigators and prosecutors to challenge an officer’s decision to fire his or her weapon, even in controversial incidents. In the rare instances they do, it is often for a lesser charge, like manslaughter or aggravated assault.

A Texas Tribune investigation of 656 police shootings in Texas’ largest cities between 2010 and 2015 found only 25 officers who were disciplined by their department after a shooting, with ten of them being fired. Only seven cops were indicted on a criminal charge, none of which were for murder, and none of which have led to a conviction.

And yet, on Monday, a little more than two months after Roy Oliver shot and killed 15-year-old Jordan Edwards while he sat in the passenger seat of a car moving away from police, the relatively new Dallas County District Attorney Faith Johnson confidently announced a grand jury had indicted Oliver on one count of murder and four counts of aggravated assault by a public servant, one for each of the other teens who were in the car with Edwards.

“Hopefully it is a message we’re sending to bad police officers. And that is, if you do wrong, we will prosecute you,” she said at a news conference.

Lee Merritt, a lawyer for the Edwards family, posted on Twitter that he remained “cautious” after the indictment, adding that it has been more than 40 years since a police officer was convicted of murder in Texas.

In 1973, Dallas police officer Darrell Cain was convicted of murder in the death of Santos Rodriguez, a 12-year-old boy who Cain forced into a version of Russian roulette in which Cain held a gun to the boy’s head and, on the second pull of the trigger, killed him while he sat handcuffed inside a squad car. Cain claimed the shooting was an accident and was sentenced to five years in prison but was released in half the time.

The law enforcement reaction to the death of Edwards, a Mesquite High School freshman, differed from that of most police shootings almost immediately. Though Balch Springs police originally said Oliver shot Edwards when the car was being driven toward officers, Chief Jonathan Haber changed the narrative after watching body camera footage to say the car was moving the opposite direction. Within a week of the shooting, Oliver was fired from the department and arrested on suspicion of murder.

The quick action by law enforcement raised questions from the two largest police unions in the state. On Tuesday, the executive director of the Combined Law Enforcement Associations of Texas said the fast firing and indictment of Oliver had a “tinge of politics” to it and that a rushed investigation can lead to two tragedies instead of one.

“The district attorney is looking for a victory here — that’s what’s going on,” said Charley Wilkison. “District attorneys, they’re supposed to seek justice; they’re not supposed to enter an investigation with an outcome in mind. That’s something else. That’s not justice.

Though indictments against police are rare, Dallas County, under multiple district attorneys, appears to have the most in the state in recent years. In March 2016, Farmers Branch officer Ken Johnson was indicted on a murder charge in the off-duty shooting of a 16-year-old he chased after suspecting him of breaking into his vehicle. He has since resigned, but his case has not yet gone to trial.

In the Tribune’s 2016 investigation, three of the seven officers who were indicted in a shooting came from Dallas County. Dallas police officers Cardan Spencer and Amy Wilburn were both indicted in 2013 on charges of aggravated assault in separate non-fatal shootings (neither case has gone to trial). And Garland police officer Patrick Tuter was indicted on a manslaughter charge in 2013, more than a year after he shot 41 times at Michael Allen, who was fleeing from police in a truck, killing him.

Before Tuter’s case, no Dallas County grand jury had indicted an officer in a fatal shooting in more than 15 years, according to the Dallas Morning News. In December, the judge in his case declared a mistrial after the jury couldn’t reach a verdict.

Another unusual Texas case led to a conviction in 2014 for Sgt. Jason Blackwelder with the Conroe Police Department. Blackwelder, who was off duty, killed Russell Rios, an unarmed 19-year-old community college student, by shooting him in the back of the head as he fled a Walmart where he was suspected of shoplifting. Blackwelder was found guilty of manslaughter and received five years of probation and no jail time.

These examples are exceptions to the norm, the few times when action was taken against officers among hundreds of shootings. Police have a wide discretion to fire their weapons, and the law tends to side with them if they say they were in a situation where lethal force was needed.

Oliver’s legal case is just beginning. A rare sequence of events has led to his indictment, but, as his case (likely slowly) now winds through the criminal justice system, it would be even rarer for a jury to hand down a murder conviction.

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Texas death row inmate Scott Panetti to get further competency review

Death row inmate Scott Panetti.

The U.S. 5th Circuit Court of Appeals sent the case of a schizophrenic Texas death row inmate back to district court in a sharp opinion Tuesday. The lower court will have to take another look at whether Scott Panetti’s mental illness makes him ineligible for execution.

Panetti’s case is well known in Texas. He is often the poster child for advocates who argue against the death penalty for the mentally ill. A diagnosed paranoid schizophrenic, during his original trial more than 20 years ago he waived his right to counsel and attempted to call the pope, John F. Kennedy and Jesus Christ as witnesses.

At issue in the latest development in a long and winding legal saga is whether a federal court would grant Panetti a lawyer, experts and time to present evidence that he is incompetent for execution. His mental competency was last examined in 2007 — the year when the U.S. Supreme Court ruled in his case that a death-sentenced person must understand that they’re about to executed and why.

The U.S. District Court for Texas’ Western District denied Panetti’s latest requests, stating that he “failed to show that his mental health had substantially changed” since the 2007 evaluation, according to the Tuesday opinion. But the appellate court rejected the argument and ordered the lower court to grant Panetti’s request and further review his competency.

“The reality is that a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed,” Judge Patrick Higginbotham wrote in the three-judge circuit panel’s opinion. “We need not and do not treat the merits of Panetti’s claim that he is incompetent to be executed — that is for the district court after Panetti has been afforded the opportunity to develop his position.”

Panetti was convicted and sentenced to death in the 1992 murders of his wife’s parents in Fredericksburg. His mental illness has always been a key element in all of his legal proceedings since. His appeals have focused on his early diagnosis of schizophrenia in 1978 and stories of delusions that have persisted throughout his life.

According to the appellate court’s opinion, since his last mental evaluation, prison guards have noticed Panetti acting delusional and he has claimed to be the father of singer Selena Gomez and said CNN anchor Wolf Blitzer showed his stolen prison ID card on the news.

Panetti’s defense team said Tuesday they are confident the district court will find Panetti ineligible for execution after further review. The state of Texas has argued that Panetti’s case should be held in state courts based on procedural rules.

“We are grateful that the court found that Mr. Panetti’s nearly four decades of documented schizophrenia and severe mental illness provided a sufficient showing to obtain experts and resources to pursue the claim that he is currently incompetent for execution,” lawyers Greg Wiercioch and Kathryn Kase said in a statement.

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Some counties question need of special courts for law enforcement

There’s one new law on the books intended to help police in Texas that has gotten less attention than several others in a year when lawmakers touted their “back the blue” bills. It’s a measure that will allow counties to create pretrial diversion programs for first responders who commit crimes because of job-related mental health issues.

The law, inspired by similar courts available to veterans, was pushed by one of Texas’ largest police unions, and it sailed through a Legislature eager to help law enforcement in the year following a Dallas shooting that left five police officers dead. But at least a few county judges and experts say the courts seem unnecessary or concerning, and many large counties don’t appear interested in setting them up anytime soon.

Starting in September, counties will be able to establish a specialty court for law enforcement officers, firefighters, prison guards, county jailers and paramedics charged with any misdemeanor or felony. The law focuses on those who suffer from a brain injury, mental illness or a mental disorder — such as post-traumatic stress disorder — that they got from their job. Eligible defendants could bypass criminal prosecution and instead go into a treatment-based program specific for each case.

Counties can choose to limit what types of crimes are eligible, and both the prosecution and judge in each case must sign off for a defendant to be eligible. Participants in the program who are able to pay can be charged up to $1,000 plus the costs of any testing, counseling or treatment.

“I think this allows our first responders, if they’re suffering from a mental disorder, it allows them to get the help that they need so they can get back in society rather than send them through the criminal system,” said state Rep. Charlie Geren, R-Fort Worth, who authored the bill.

“Their circumstances are different”

Specialty courts are a way for the justice system to keep high-risk individuals out of jail or prison and into treatment that looks to solve the deeper issue that led to crime. Drug courts are the most common specialty court in Texas, which seek to treat addiction rather than jail people for drug-related offenses. Other specialty courts focus on DWIs, mental health and prostitution.

The bill to create courts specifically for law enforcement was pushed by the Combined Law Enforcement Associations of Texas (CLEAT), in an effort to mirror a similar law passed in 2009 that allowed counties to create specialty courts for war veterans who suffer from brain injuries or mental issues like PTSD. Those courts work with the U.S. Department of Veterans Affairs to provide treatment.

“Since we’re treating soldiers similarly, we thought that it would be a good idea to put forward to the Legislature that we do the same for officers because their circumstances are different … from anyone else’s,” said CLEAT executive director Charley Wilkison.

Lawmakers were happy to take it on. House Bill 3391 passed out of both chambers this year with a large majority of votes and little controversy, only drawing public comment from some Tea Party-aligned Republicans. State Rep. Jonathan Stickland, R-Bedford, questioned the constitutionality of creating a “special class of persons,” and Sen. Konni Burton, R-Colleyville, wrote in the Senate’s journal that the bill language was too broad, allowing the possibility for murder cases to be sent through the diversion program.

Wilkison said he didn’t expect any controversial cases, such as shootings by police, to go through these programs because the judge and district attorney who would have to sign off on the diversion are publicly elected officials.

“The justice system that is dominated by electoral politics, I don’t see it taking some sort of secret back road to treat an officer,” Wilkison said. “… These [courts] are for substance abuse, for people experiencing trauma, and I think this is our sense of getting to some sort of justice.”

Comal County District Judge Dib Waldrip, president of the Texas Association of Specialty Courts, said he thinks the new programs could be a good thing because specialty courts have been proven to make a difference and lower recidivism for high-risk individuals. But he added that he hadn’t heard of a specific need for first responders and that existing drug and DWI courts could possibly handle cases involving first responders, as well.

“If there is a special need in some community somewhere, I’m all for it. I do think that probably the traditional approaches from the drug court model, in general, can suffice,” Waldrip said.

Gov. Greg Abbott signed the bill in June, along with a handful of other bills that focused on helping police and first responders following the Dallas shooting. The bills include one that will create a $25 million grant program to provide bulletproof vests to law enforcement agencies and one Abbott personally lobbied for that classifies assaults against police and judges as hate crimes.

Bill creates even more preferential treatment to rogue cops…

A question of need

Before specialty courts for former military were available in Texas, judges had sought alternatives to help the uptick in veterans streaming into their courtrooms. There doesn’t appear to be a similar need for police and other law enforcement officials, said Kathy Mitchell, the sentencing campaign coordinator for Texas Criminal Justice Coalition, who specializes in police practices.

“I don’t really understand why [the law] is necessary. Police officers generally have good benefits if they need treatment,” Mitchell said. “Specialty courts typically have been designed for folks who are sort of desperately in need of services.”

Generally, specialty courts are created in counties after judges see a need for a certain offense or population. The judge will approach the county, and the county’s commissioners court, led by the county judge, can then start the process of establishing a diversion program.

Several judges in large Texas counties said they have not heard of anyone who has asked for a public safety specialty court, but some added that didn’t necessarily mean there wasn’t a need for it since the law hasn’t been enacted yet. CLEAT couldn’t list any counties wanting to create a new court either, though Wilkison said he didn’t ask counties about it.

Geren said Tarrant County Judge Glen Whitley expressed interest in establishing a public safety specialty court. Several phone calls to Whitley for this story were not returned.

Judge Susan Brown, Harris County’s administrative judge of criminal courts, said she was aware of one case of an officer who might fit the criteria for these courts, but she didn’t give specifics. She added that it was not something she had seen personally in her 18 years on the bench.

“I’ve had very few cases against police officers … and I can’t think of any [when] it was brought to my attention that this behavior was due to an injury that occurred or something that happened while employed as a police officer or fireman,” Brown said.

And in Dallas, County Judge Clay Jenkins said he has not been approached about new courts either. He also expressed concerns that a diversion program could further divide the community from police officers.

“A specialty court could have the unintended consequences that there is special treatment — that there is less justice for law enforcement personnel than [a citizen’s] own family,” Jenkins said.

The judge emphasized his admiration for law enforcement and said he sympathized with the “toxic stress” first responders deal with every day but said they must be held to a different standard than veterans on the street.

“We want to be compassionate when people are hurting, but first you need to be held accountable for your actions,” he said.

Disclosure: Charley Wilkison has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

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Perjury charge dropped against trooper who arrested Sandra Bland

Editor’s note: This story has been updated throughout.

A state district judge on Wednesday dropped the perjury charge against the Texas Department of Public Safety trooper who arrested Sandra Bland in 2015 after he stopped her for failing to signal a lane change. Bland’s death in a Waller County jail cell three days later ignited national outrage.

The now-fired trooper, Brian Encinia, was indicted on a charge of perjury in January 2016 for allegedly lying in the report he filed after Bland’s arrest. Waller County District Judge Albert McCaig dropped the charges at the prosecution’s request. The prosecution asked for dismissal after Encinia agreed to give up his police license and never seek another job in law enforcement. Originally, Encinia sought to fight his termination.

“Brian and his family appreciate the thoughtful review by the prosecutors. Dismissal was the right thing to do. The Encinias will remain forever grateful to their family, friends and members of the law enforcement community for all their support,” said Chip Lewis, Encinia’s attorney, in a statement announcing the dropped charge.

In July 2015, Encinia stopped Bland, a 28-year-old black woman from Illinois, for not using her turn signal when changing lanes while she was driving in Prairie View. Dashboard camera video of the traffic stop shows Encinia asking Bland to get out of the car after she refused to put out a cigarette, and, when she didn’t comply, opening her car door, threatening to drag her out, and telling her, “I will light you up.” Encinia and Bland yelled at each other during the interaction, which ultimately led to Bland’s arrest on suspicion of assaulting a public servant.

Bland was found dead in her jail cell three days later. Her death was ruled a suicide by hanging.

In his report, Encinia wrote he had Bland exit the vehicle “to further conduct a safe traffic investigation.” Focusing on that statement, a Waller County grand jury opted to indict Encinia last January on a misdemeanor perjury charge, punishable by up to one year in jail and a $4,000 fine.

Bland’s death sparked calls for reform from activists. Texas lawmakers this year passed a law in her name. The measure, which will go into effect in September, will mandate that county jails divert people with mental health and substance abuse issues toward treatment, make it easier for defendants with mental illness or intellectual disability to receive a personal bond and require that independent law enforcement agencies investigate jail deaths.

Following her death, Bland’s mother, Gevena Reed-Veal, settled a wrongful death lawsuit against Encinia, Waller County and several of its employees for $1.9 million. The settlement also called for policy changes at the jail including timely cell checks, on-duty nurses and additional jailer training.

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Texas death row inmate loses at U.S. Supreme Court, could face execution date

A Texas death row inmate whose case made it all the way to the U.S. Supreme Court could now face an execution date after the justices ruled against him in a 5-4 decision Monday morning split among ideological lines. The man was convicted in the 2008 shooting deaths of a 5-year-old girl and her grandmother in Fort Worth.

The question before the high court in Erick Davila’s case was whether claims of ineffective assistance of counsel during state appeals should be treated the same as during the original trial. Appellate courts throughout the country have ruled differently on the issue, a situation that often prompts the Supreme Court to step in. In the Monday opinion presented by Justice Clarence Thomas, the justices ultimately decided that the different types of lawyers should not be treated the same, making Davila’s case ineligible for consideration in federal court. 

“Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default,” Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch. 

Justice Stephen Breyer, a notable death penalty critic, wrote a dissenting opinion, joined by liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

“The fact that, according to Department of Justice statistics, nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one,” Breyer wrote in his dissent.

Davila’s case started in Fort Worth in 2008, when he fatally shot a rival gang member’s 5-year-old daughter and mother during a child’s birthday party, according to court documents. Davila, now 30, claims he only meant to kill his rival, Jerry Stevenson. In his confession to police he stated he was trying to get Stevenson and “the guys on the porch.”

If the jury had believed Davila only intended to kill one person, he would have been ineligible for a capital murder verdict and the death penalty would have been off the table. In this case, Davila must have intended to kill multiple people to be found guilty of capital murder.

During deliberations, the jury asked the judge for clarification on the intent issue, and the judge said Davila would be responsible for the crime if the only difference between what happened and his intention was that a different person was hurt. He did not affirm to the jury that Davila must have intended to kill more than one person to be found guilty.

It’s that jury instruction that Davila’s long, complicated case hinged upon. His lawyer at trial objected to the instruction, but was overruled. But in his automatic, direct appeal after being convicted and sentenced to death, his new lawyer never mentioned the judge’s instruction, even though that is the appeal where death-sentenced individuals raise what they think are wrongdoings from the trial. Afterward, during his state habeas appeal, which focuses on issues outside of the trial record, the lawyer didn’t fault the previous lawyer for not raising the issue on direct appeal.

The next step in the death penalty appeals process after going through state courts is to move into the federal court system. But federal courts generally can’t rule on issues that could have been raised in state appeals. So, when Davila’s current lawyer, Seth Kretzer, tried to claim his client’s direct appellate lawyer was inadequate for not raising the issue of an improper jury instruction by the judge, the federal courts said they couldn’t look at the issue because it could have been raised by the state habeas appellate lawyer.

“The way the law works right now is if the trial counsel made a mistake, the federal court could save the inmate’s life, but if the appellate counsel made the mistake, they would have to go ahead and execute,” Kretzer told The Texas Tribune in January.

One exception to this rule was created in 2012 by the Supreme Court in Martinez v. Ryan, which says that if a state habeas lawyer failed to question a trial lawyer’s inadequacy, the federal courts can review the claim to ensure that defendants are guaranteed a fair trial. But Davila argued that the Martinez exception should apply to inadequacy of the appellate attorneys, as well.

Federal courts have disagreed on this issue, with most circuit courts ruling that appellate lawyers can’t be treated the same as trial lawyers. But the often liberal 9th U.S. Circuit Court of Appeals has previously ruled there is no distinction between the two.

During oral arguments on the case in late April, conservative justices appeared concerned that opening up the exception would cause a “flood” of appeals into the federal court system, but the left-leaning members of the court dismissed the idea. Justice Sonia Sotomayor predicted there may be an “initial uptick of claims until people settle down” and realize only a small number of cases are eligible for federal review.

The state of Texas also argued in its brief to the high court that in Davila’s case, none of the larger legal questions matter, because even though the 5th U.S. Circuit Court of Appeals ruled that it couldn’t review the case based on its interpretation of the Martinez exception, it still reviewed the issue of the jury instruction and rejected Davila’s argument that it was improper.

This was the third Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the first time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas’ method for determining intellectual disability for death row inmates was unconstitutional.

Davila’s lawyer, Seth Kretzer, told the Texas Tribune Monday after the Supreme Court announced its decision that the 5-4 ruling shows “why it’s so important to keep pressing these things.” Kretzer is looking into other possible appeals for Davila in the state courts, but recognizes that Tarrant County could soon set an execution date for his client.

“We took this case farther than anyone thought we would, and we intend to keep fighting it,” he said.

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Texas Gov. Abbott signs bill to enforce reporting of police shootings

Starting in September, Texas law enforcement agencies could be fined $1,000 a day if they don’t report police shootings to the state in a timely manner.

Gov. Greg Abbott on Thursday signed into law a bill that will add teeth to a law passed two years ago requiring departments to report to the attorney general’s office any time an officer is involved in a shooting that results in injury or death. State Rep. Eric Johnson, the author of House Bill 245, said repeatedly during this year’s legislative session that the threat of a fine will ensure the state has complete data on police shootings, a requirement to accurately study the issue in the state.

“House Bill 245 goes a long way toward making sure Texas continues to lead the nation in collecting this type of information and hopefully, armed with facts, Texas can lead the nation in reducing fatal encounters involving law enforcement,” Johnson, a Dallas Democrat, said in a statement after the bill’s passage in the Legislature.

Last year, a Tribune investigation into Texas police shootings highlighted the inconsistency across departments in keeping records on the incidents before the state reporting requirement took effect in September 2015. Some departments volunteered information on their own websites, but others fought public information requests, gave heavily redacted records or said they did not keep track of police shootings.

After the state mandated law enforcement agencies report shootings to the attorney general’s office last legislative session, most have complied. But there have been some cases where reports were filed months late, often only after the media pointed out the information was missing.

Under the new law, departments will still get some leeway if they don’t report a shooting right away. There is a 30-day window to file a report after the shooting. After that, if the state is informed of an unreported shooting, the attorney general’s office can investigate and notify the department it has seven days to report it. Only then will the state be able to fine the department $1,000 a day, with the money being funneled into the state’s Crime Victims’ Compensation Fund.

Rep. Tony Tinderholt, an Arlington Republican, expressed concerns last month about fining police departments before the House voted to send the bill to the governor, saying that it is a large fine coming from taxpayer dollars. Rep. Phil King, a Republican from Weatherford who chairs the House panel that voted out the bill, countered that the notification process in place makes the bill “a gentle nudge rather than a hammer.”

As it moved through the Legislature, the bill initially faced some unexpected opposition on the House floor when it failed by one vote, caused partially by what Johnson called Republican retaliation for Democrats purposefully drawing out debate on the bill heard just before HB 245. The bill was quietly brought up for reconsideration the next day, and easily drew enough approval on a final vote.

On the other side of the Capitol, the bill breezed through the Texas Senate, though state Sen. John Whitmire, D-Houston, failed to add to the bill a requirement for the attorney general’s office to build and maintain an online portal to collect and analyze police shooting reports. The language — taken from another of Johnson’s bills that failed to make it to the House floor — was added in committee but struck from the legislation on the Senate floor.

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Execution halted for man convicted in Texas real estate agent’s murder

Another Texas execution has been stopped by the state’s highest criminal appellate court, giving relief to the man convicted in 2007 in the robbery and murder of a McKinney real estate agent.

Kosoul Chanthakoummane, 36, was scheduled to die on July 19 after more than nine years on death row. He was convicted in the 2006 stabbing death of Sarah Walker in the model home of a subdivision where she worked, according to court documents. On Wednesday morning, the Texas Court of Criminal Appeals issued a stay of execution and sent his case back to the Collin County trial court to review claims of discredited forensic sciences.

On July 8, 2006, a couple coming to view the model home found Walker dead, stabbed 33 times with a bite mark on her neck, according to a federal court filing. Her watch and ring were missing from her body. Bloody fingerprints found at the scene and DNA under Walker’s fingernails linked the crime to Chanthakoummane, who was arrested nearly two months later.

Chanthakoummane told police he went to a model home after his car broke down, and that he had cuts on his hands that could explain his blood at the scene, according to the filing. At trial, the state presented forensic experts who claimed a bite mark on Walker’s neck and DNA at the scene pointed to Chanthakoummane.

This is the third time the Texas Court of Criminal Appeals has halted a scheduled execution this year (two of those scheduled executions were for the same man, Tilon Carter.) Another execution was halted by a federal court.

There have been four executions in the state this year.

This is a developing story and will be updated.

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Gov. Abbott signs bill to eliminate straight-ticket voting beginning in 2020

After remaining quiet on the issue during the recent legislative session, Gov. Greg Abbott signed a bill into law Thursday that will eliminate the straight-ticket voting option starting in 2020.

Straight-ticket voting, the option for voters to check one box to cast a ballot for every candidate from a single political party, is not available in most states, but it accounted for nearly 64 percent of total votes cast in Texas’ 10 largest counties in the 2016 general election. House Bill 25 removes the straight-ticket option from Texas ballots after September 2020.

Supporters of the bill say removing the option will force voters to make more informed decisions in individual elections, but opponents say the legislation will disproportionately impact minority voters. A federal judge found as much last year in Michigan, blocking a similar law from going into effect.

During the Legislative session, the measure from state Rep. Ron Simmons, R-Carrollton, drew strong opposition from Democrats.

Though the state does not collect data on straight-ticket votes cast, there have been generally fewer Republican straight-ticket votes and more Democratic straight-ticket ballots in Texas’ largest 10 counties over the past four presidential elections. 

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