Thursday, August 21, 2014

Former TDCJ flak Michelle Lyons profiled: Witnessed 278 executions

At Texas Monthly, Pam Colloff has a profile of former TDCJ flak Michelle Lyons titled, "The Witness," focused mainly on the 278 executions Lyons witnessed as part of her job before her termination/resignation in 2012. Lyons still supports the death penalty but the experience made her more thoughtful about the issue than most folks. She told Colloff:
I came to believe that there were two kinds of people on death row. ... You had guys who were true sociopaths. A lot of them fell into that category. And then you had guys who’d gotten themselves into a bad situation—running with a rough crowd, abusing alcohol, doing drugs. Maybe they robbed a store to get money for drugs and something went wrong and they shot the clerk. They’d had a choice to make, and they’d made the wrong one, but they hadn’t set out with the intention of killing someone.
The story also included this brief aside about the agency's shift away from transparency in the last decade: "TDCJ itself was changing. Under the leadership of a new executive director, Brad Livingston, who was appointed in 2005, the agency had grown more skittish about media attention, and Michelle’s attempts to grant access to journalists or be proactive about press coverage were increasingly discouraged."

The agency's leadership became even more insular and averse to transparency after Lyons left. Where previously one could call and ask for a document and frequently the Public Information Office would just email it to you, today everything must be done via open records requests, takes forever, and often one comes away feeling like information was withheld. (One could say the same thing for Texas DPS under Col. Steve McCraw, btw.)

No real conclusions to draw or policies to recommend from Colloff's story and it won't change anyone's mind about the death penalty one way or the other. But it was a good read.

Wednesday, August 20, 2014

Jail poetry project profiled

For those of y'all who chipped in to help fund Kelsey Erin Shipman's Kickstarter campaign to publish a book of poetry by Travis County jail inmates, you may be interested in this feature profile of her and her project from the Texas Observer.

Exoneree confronts con whose crime caused false conviction

Dallas exoneree Christopher Scott authored a recent essay at the Texas Observer about his experience visiting the man who actually committed the robbery and murder for which Scott was falsely convicted. There's compelling video accompanying the piece excerpted from an upcoming documentary. Good stuff.

Tuesday, August 19, 2014

Max Soffar’s Last Appeal

Michael Berryhill chairs the journalism department at Texas Southern University. He asked Grits to publish this extended guest post by him on the Max Soffar capital murder case, which also inspired this recent Dallas Morning News editorial. Soffar, who for decades has maintained his innocence and may have falsely confessed, is terminally ill and likely will not survive until his execution. While on paper he has many years' worth of appeals left before the state can kill him, as a practical matter he probably has just a few months remaining to prove his innocence before death overtakes him.

Mr. Berryhill is also the author of The Trials of Eroy Brown, the Murder Case that Shook the Texas Prison System, published by the University of Texas Press. Here's his article in full, with only minor copyediting by yours truly.

* * *

On the last Wednesday of July, a death row convict named Max Soffar gave what may well be his last news interview. Soffar, who is 59, has spent most of the last 34 years insisting he falsely confessed to helping another man kill three teenagers at a Houston bowling alley in 1980.  

Harris County prosecutors, the leading experts in the nation at winning death penalty verdicts, insisted that no matter what his written confession said, Soffar acted alone. Although there is not a shred of physical evidence that links Max Soffar to the murders, not a trace of blood, not a hair, not a fingerprint, not a gun, not a getaway car, they have twice convicted him of shooting a young woman, one of the three victims of an execution-style murder and robbery.

 Soffar was convicted once in 1981, and after he won a second trial because of his ineffective lawyers, a second time in 2006. During the final arguments, one of Soffar’s prosecutors gloated to the jury that his lawyers “didn’t bring you any evidence that someone other than the defendant committed this crime.”

That is particularly galling to Soffar because the Harris County prosecutors and his judge, Mary Lou Keel of the 232nd District Court, did everything necessary to keep the jury from hearing a plausible story about who really committed the bowling alley murders. Now Soffar’s appeal lawyer has turned up a reliable witness who has identified a convicted mass killer of seven people as being present at the Houston bowling alley a week before the murders.

“I hope my federal judge in Houston will let me put this witness on,” Soffar said. “He was the one who saw this murderer in the bowling alley.”

Soffar’s lawyers need to hurry up to get that hearing, not because Soffar faces impending execution, but because he is terminally ill with liver cancer and has from five to eight months to live, maybe less. So many questions surround Soffar’s conviction, which a judge for the Texas Court of Criminal Appeals has called “fishy,” that he has never been scheduled for execution.  Soffar has many years of appeals left: to the federal district court, to the Fifth Circuit panel of three judges, to the nine judges of the Fifth Circuit en banc, and to the Supreme Court. Such appeals could go on for several years. But Soffar is out of time.

Soffar’s current pro bono appeals lawyer, Andrew Horne, has been feverishly working on new writs: an appeal for clemency from the Texas Board of Pardons and Paroles and Governor Rick Perry, and an appeal for an expedited hearing from the Southern District Federal Court. The odds of winning clemency for a twice-convicted capital murderer in Texas from Perry, who is preparing to campaign for president, are about zero.  The petition for an expedited federal hearing for a terminally ill inmate breaks new legal ground, Horne told me. He said he hasn’t found any precedent for it.  But he wants his client to have one more chance to clear his name before he dies.

Horne, a young Scot with a Harvard law degree from the international firm of Kirkland and Ellis, has spent the last six years and millions of dollars of his employer’s money to investigate Soffar’s complicated case. The files alone fill sixty boxes in a small room at his firm’s offices in midtown Manhattan.  He had been warned that in a case that has been litigated for thirty years by dozens of lawyers, the chances were slim he would find something new.  

Vowing to touch every piece of paper connected with the case, he found a witness that anyone with a sense of fairness (but perhaps not a judge or a Harris County prosecutor) would want to hear. He was a bowling alley employee named Patrick Pye, and two of his friends died that weekend. The case was widely publicized: it was a cold-blooded execution of some helpless teenagers that horrified the city.

On July 15, the Monday after the weekend killings, Pye told police that he and one of the bowling alley employees who was killed had a “run-in” with a white man at the bowling alley a week before the murders. The man bowled alone and drank alone, Pye told Horne, and he and Steve Sims had thrown him out for not paying.

“Pye stated that he got a phone call from this man,” the police report days, “who stated, ‘You better be watching over your shoulder.’  Pye stated that he thought he would be able to id this man if he saw him again.”

Even 28 years later, Pye could identify him as Paul Dennis Reid, the man with the droopy eyes, from a wedding photo taken a couple of weeks after the murders. 

If the Houston police had followed up on Pye’s story, they might have found Reid. For one thing, he had a criminal record. But more importantly, he resembled a police sketch of the murderer, drawn with the help of a surviving witness, Greg Garner. Garner lost an eye when he was shot in the back of the head, but he had a strong recall of how the robbery happened. Detectives interviewed Garner seven times, recording and transcribing the interviews, and even hypnotizing him to see if he could retrieve further details. It had happened quickly. There was one man, not two. The man said his truck had overheated and he needed water. He had a gun. He made them lie down. He said “good-bye,” and shot them one after another.

Garner remembered a single, mild-mannered robber who was white, beardless, muscular and more than six feet tall. His hair was parted down the middle, covered his ears and was down to his collar. It fit Reid. Within a few of days of the murders, Houston newspapers and television stations were circulating this drawing:

It was this drawing that led to Max Soffar’s downfall. A reward of $15,000 was offered for the arrest of the killer, and Soffar had a crazy notion that his running buddy and partner in burglaries and drugs resembled the drawing closely enough that he could turn him in for the bowling alley murders and collect the reward. It didn’t matter that his buddy was bigger and rounder than the drawing indicated, and wore mutton-chop sideburns. Max thought he looked just like the image.

“My sister, I told her I was going to do it,” Soffar recalled, “ and she said, ‘Max, don’t do that, because if you do, then you’re gonna get in trouble.’ And I’m thinking how am I gonna get in trouble? I’m telling them he did the murders…. I said ‘They’re going to listen to me and they’re going to give me that money.’ She said, ‘You’re crazy.’”

Thinking back 34 years, Soffar sighed, and said, “I guess I should have listened to my sister.”

From birth Soffar had problems. He was the adopted son of a drug-using mother, and both his liver and brain were damaged from fetal alcohol syndrome. He was an impulsive and difficult child who beat his head against the wall His parents had little idea of how to raise him. Soffar’s adoptive father was a remote, alcoholic owner of a second-hand furniture shop in Alvin, who beat Max when he was little. His mother was a hoarder, who kept the house filled with so much junk and stacks of newspapers that a person could barely walk through the house.

From an early age he sniffed glue and gasoline. When he was 9, his parents had him committed to the Austin State Hospital, where he was often kept naked and terrified in a padded cell. He was given electroshock treatments and dosed with powerful anti-psychotic drugs.  (At his second trial, in order to assert Soffar’s future dangerousness, prosecutors falsely claimed he had been criminally confined, which created another point of appeal. During his long confinement in death row, Soffar has never been a threat to the inmates or correctional officers.)

When he came back home to Friendswood, his parents couldn’t control him. He smoked marijuana, sniffed glue, and took methamphetamine and other drugs. He dropped out of school at the seventh grade. He worked as a truck driver for a while. In 1980, he was living at his parents’ home, unemployed, committing burglaries, stealing cars and motorcycles, and taking whatever drugs he could find.

Galveston County sheriff’s officers got to know him well, and for the most part, Max liked the attention.  With no authority figures at home, he looked up to the police. He even helped them by ratting out drug dealers. Once in a while he made fifty bucks as a drug informant for the Galveston sheriff’s office. He had a friend there, a detective named Bruce Clawson. Clawson thought of Max as having the mind of a 12-year-old, and testified that he never swore out a warrant on the basis of one of Max’s stories, which could be lurid and exaggerated. Max learned that the wilder the story, the more attention he could get.

That’s how he came up with the idea of turning in a friend for the reward money. It was going to be his big score. When he was arrested riding a stolen motorcycle three weeks after the murders, he was high on drugs. The cop who arrested him told Max he was going to see he got thrown in prison for life for being a habitual criminal. Soffar decided he wasn’t going to spend life in prison for a stolen motorcycle.  He had already bragged to a couple of drug dealers and that he and his buddy had done the bowling alley murders. Now he had something big to offer the cops. He figured he would soon be home with $15,000 in reward money.

The Houston police and an assistant district attorney came to League City to listen. When Soffar balked at talking to them, they brought in his handler, Bruce Clawson, to get him to open up. Many years after Soffar’s first conviction, Clawson expressed regret about how he had misled Soffar. Soffar had routinely waived his Miranda rights after they were read to him, but when a suspect refuses to talk, that’s a sign under some legal interpretations that the interview should end, and the suspect wants a lawyer. Soffar asked Clawson what was involved in getting a lawyer and how soon it would take him to get one. Maybe a day, maybe thirty days, Clawson said. Clawson advised him that if he was guilty of the crime, he should talk to the police; if he was innocent, he should get a lawyer. I guess I’m on my own, Soffar told Clawson. Later, when Clawson observed a Houston detective questioning Soffar about the murders, he concluded that Soffar didn’t know a thing about the crime, that the police were feeding him details that would lead to his conviction.

It took police three days for the Houston police to get the confession they wanted. In his first signed statement, Soffar said he was waiting outside in the get-away car while his partner robbed the bowling alley and shot the teenagers. The next day, at the urging of the detectives, he said he went inside and watched his partner do the killing.

But forget about the partner. Harris County did. The son of a Houston police detective, he was hauled to the police station and appears to have invoked his Miranda rights successfully. His car and apartment were searched and nothing was found to link him to the crime. Greg Garner, the surviving witness, couldn’t pick him out of a lineup as the killer. He couldn’t identify Soffar, either. No record of the partner’s police interrogation survived, except a scrap of yellow legal paper that says, “Suspect is crying.” He was never indicted, because unlike Max Soffar, he never confessed.

It would have helped Soffar’s case if police had tape-recorded their interrogations of him. His case has been used as an example for legislation requiring that they do. Police had the technology at the time, but seem to have used it only when it suited their purposes.  (They recorded their interviews with Garner, for example.) Instead they talked to Soffar for hours, drove him to the bowling alley where he inaccurately described the crime, and wrote up statements for him to sign. By the third day of interrogation, Soffar was ready to say whatever he thought would get the process to end. And the police needed to charge him or let him go. Soffar told me he kept making up stories about buried guns and bodies that were so wild he thought the police would figure out that all he told was lies and that he knew nothing about the crime.

On the third day, the detectives told him he couldn’t say he had just witnessed the murders. He had to say he helped out. They had already cut his supposed partner loose. Soffar signed a statement in which he said his partner ordered him to participate in the killing. After shooting two of the men, the partner threw the loaded handgun across the room to Soffar and told him he had to shoot the last two. Soffar signed a statement  saying that first he shot one of the men. Next came the chilling sentences that led to his convictions:

“I walked around the other side of them and hesitated, and [he] said, ‘Shoot her.’ She had her face down and she just looked up at me and I aimed and turned my head and shot her. I think I hit her in the cheek.”

Prosecutors have claimed that this is a detail that only the killer could know, even though it published in the first Houston Post story the day after the crime. Soffar says he didn’t get the detail from the newspaper but from the police detectives.

Soffar said one of the detectives asked him,  “’Why did you shoot the girl in the face and everybody else in the back of the head or the side of the head? ‘ And that’s how I knew that Arden Alane Felsher had been shot in the face. That key element put into one of the statements and that’s how they hammered me into death row right there.”

More than one judge had observed that Soffar’s confession is all there is to this case, and none of it matches the surviving witness’s account.

In 2002 a rock-ribbed conservative judge for the Fifth Circuit Court of Appeals, Howard DeMoss, read Clawson’s affidavit and concluded that Soffar had indeed asked for a lawyer, not about a lawyer.  He and a second judge concluded that Soffar’s confessions had been illegally obtained and violated the Miranda act.

Had the court thrown out the confession as a violation of the Fifth Amendment , the state would have had no case because it had no physical evidence. The state appealed, and in a kind of tradeoff, the Fifth Circuit ruled that Soffar deserved a new trial because his court-appointed lawyer, the infamously casual Joe Cannon, known for sleeping during trial, had ineffectively defended him.

Then came the second trial in 2006, 24 years after the first conviction. It must have seemed strange to the jury to hear a case that old, with no mention ever made of the previous conviction.

Soffar’s defense team had a witness named Stewart Cook who had partnered with Paul Reid in a series of armed robberies. With Reid in Tennessee death row for killing seven restaurant workers in two different robberies, Cook thought he would write a book about Reid, a boyhood friend.  Cook signed an affidavit stating that Reid had told him he had committed the bowling alley murders. But Cook never went before the jury because the Harris County district attorney threatened to prosecute him for murder if he testified. 

Judge Mary Lou Keel would not let the Tennessee police detective who helped convict Reid testify about how closely the Tennessee murders resembled the bowling alley murders. She concluded they weren’t that similar. Nor would she let the defense show jurors how many of the details of the murder had been widely publicized on television and in newspapers.

When Garner testified, which he had not at the first trial, he couldn’t remember much.  The clean-shaven murderer with hair to his collar that he described to police did not resemble Soffar, who had a full beard and mustache and hair down to his shoulders.

The prosecutors said he had grown it after the murders. Besides, how accurate could Garner have been? He had been shot in the head, lost an eye and suffered brain damage.

Soffar’s defense was gutted.

His prosecutor argued that the confession was all the jury needed: “Why in the world would anybody ever do that, unless they did that or more and the answer is you wouldn’t. You wouldn’t say that. You wouldn’t make an admission. You wouldn’t say I shot Alane Felsher in the cheek…”

This was a masterful use of the word you. Most people are baffled by false confessions. They can’t imagine doing such a thing. The jury can’t imagine such a thing. And yet it happens all the time. More than one person confessed to the bowling-alley murders besides Soffar. He was a mental patient who was living with his mother. A study of exonerations holds that false confessions play a role in 25 percent of the cases.

One of the people who knows about false confessions is a judge of the Texas Court of Criminal Appeals, Cathy Cochran, who wrote a concurrent opinion about Soffar’s case. She cited some of the better known cases such as the Central Park Five, the subjects of a documentary movie by Ken Burns, and the Norfolk Four, subjects of a book, The Wrong Guys. Four of the Central Park Five were minors, held without legal or parental help and coerced into confessing to a brutal rape and beating that left a jogger unconscious. When the real rapist confessed, insisting he had acted alone, and his DNA matched with the rape kit, New York police refused to concede their mistake. In the Norfolk, Virginia, case, four sailors confessed to raping and murdering a young married woman in a small apartment. The physical evidence of the scene contradicted the theory of a gang rape. None of the sailors’ DNA matched the rape kit. The real rapist, whose DNA confirmed he was the criminal, confessed and said he acted alone, but again police insisted that anyone who confessed must be guilty.

In the Kafkaesque world of criminal appeals, Cochran concurred with the rest of the court that Soffar had no legal grounds for a new trial, writing: “...although I personally do not have great confidence in the reliability or accuracy of applicant’s written statements and hence in his culpability for the triple murders, I was not the chosen fact finder. Applicant’s experienced and extremely capable counsel presented the jury with all of the information it needed to decide that applicant made a false confession and that he was not involved in the bowling-alley murders. The jury rejected that factual conclusion, as it was entitled to do.”

But the jury had never heard an alternate theory to the case. It was excluded. All they had was the painful choice of convicting Soffar or letting him go. They couldn’t tell the judge that they had a reasonable doubt because they had never heard of Paul Reid.

When prosecutor Lynn McClellan retired, he told the Houston Chronicle that sending Max Soffar to death row a second time was the highlight of his career. He had read about the case when he was in law school, and hoped he would do something similar some day. It appears he missed what could have been a major triumph, admitting a mistake and prosecuting Paul Reid instead.

After Andrew Horne took on Soffar’s appeals six years ago, he asked the Harris County office for conviction review to consider Soffar’s case, but he never heard back. A couple of years later when he was in Houston and asked about the oversight, he recalls a prosecutor telling him, “Max is not a poster boy for innocence.”

He lacks what could be called the Harrison Ford factor. Ford played an innocent doctor in the movie The Fugitive. The character is a handsome, intelligent, educated man without a trace of bad behavior. He’s more like Michael Morton, the kind of innocent man who gets the most attention, the kind we can identify with. Max was not a good young man. He admitted to being a thief, a drug addict and a rapist. He tried to turn in a friend for a reward. Prison has changed him for the better, he said.

“I was a Class A knucklehead when I got there,” he said. “I got beat pretty severely because I would not conform to the rules and regulations. But those were lessons where I learned to respect the authority of those around me.

“I’ve learned an awful lot behind these bars for 35 years. I’ve met a lot of interesting people. I’ve met a lot of truly dangerous, crazy people. I’ve met a lot of good people. I wouldn’t change it for the world. I wouldn’t change it for the world because if I had changed it, I would be dead. Because I had a habit of sticking a needle in my arm and stealing from my own mom and daddy, and lying to people and doing things I shouldn’t have been doing. I surely wouldn’t have survived. No way.”

His liver cancer grew out of his battle with Hepatitis C, he said, which came from his needle use. Last December surgeons at John Sealy Hospital in Galveston removed tumors from his liver. Recently the pain came back, for which he is being given morphine.

“They told me I had this portal vein tumor,” he said. “It’s inoperable. Even a liver transplant wouldn’t save me. No hospital in the world can do anything for me.”

On August 11, Horne appealed to the Texas Board of Pardon and Paroles to commute Soffar’s sentence to life and free him from death row for what little is left of his life.  That would distinguish him from Paul Dennis Reid, who refused to talk to Soffar’s lawyers about the bowling alley murders.  Reid died of a heart attack last spring in Tennessee’s death row.  

Soffar could choose to move to the prison hospital at the Estelle Unit in Huntsville, but that would mean leaving behind his radio, his legal papers, and all of his belongings, including letters from the Swiss woman he married three years ago, and who visits him every six weeks.  Bad as conditions are for death row inmates, if he can’t be freed, he would rather stay put.

“I’d rather lie right there in my cell,” he said, pointing in the direction of his block at the Polunsky Unit, “and die right where I grew up.”

MORE: A columnist for the Houston Chronicle, Lisa Gray, reacted to this post with an article titled, "Will an innocent man die on Texas' death row?"

Related Links

Monday, August 18, 2014

Send in the clowns: Montgomery County jail woes

The Montgomery County Commissioners Court's on-again off-again love affair with private corrections just took an odd turn.

Now, after recently selling a facility next door to their own jail to the GEO Group because they couldn't maintain the terms of the phony "nonprofit" created to facilitate the deal, word comes down the county supposedly must build a new jail or spend nearly as much (around $200 million) to renovate the old one, reported the Houston Chronicle (Aug. 16) and the Cleveland Advocate (Aug. 11)

The main difference between this situation and a circus is that clowns in the circus are professionals. The commissioners court's ill-considered launch and inept (and possibly corrupt) handling of the whole private jail mess has been a comedy of errors and misjudgements that would be funnier if local taxpayers weren't footing the bill. I'd be rather surprised if voters approve a nine-figure jail bond so they can go through the whole jail-building brouhaha again. (Wanna bet commissioners try to issue the debt without voter approval?)

Grits fails to understand after all these years why, whenever public officials suggest new jail construction in response to "overcrowding," reporters don't immediately begin to question the causes and solicit solutions for excessive pretrial detention. More to the point, why didn't the consultants hired by the county suggest those options? Like other jails in the state with an overcrowding problem, most Montgomery jail inmates have not been convicted of a crime (and will receive probation even if convicted). Instead, just more than two thirds of them, according to a 7/1 TCJS report, are in jail awaiting trial, still technically presumed innocent. Most simply cannot afford bail. Statewide, about 58 percent of defendants in county jails are awaiting trial; half is not at all an unreasonable goal.

Whether the old jail needs renovation I cannot say. But to the extent the issue is building more capacity, it's likely Montgomery County officials - particularly local judges - could resolve that  without new jail construction just by expanded use of personal bonds for lower risk defendants who can't make bail. They should try that before asking taxpayers/voters to trust them with another jail building scheme.

UPDATE: The Austin Statesman reported (Aug. 18) that the same consulting firm, Broaddus & Associates, has advised Hays County it has no choice but new jail construction to respond to recent overcrowding.

Throwing shade on driver surcharges

There have been two recent news articles on Texas' Driver Responsibility surcharge:
And two more opinion pieces calling for its abolition:
Nearly everyone who examines this closely - whatever their base ideology - soon comes to the conclusions that it should be abolished because of the myriad, highly damaging unintended consequences the program generates. The sticking point: How to replace the revenue? But that's not an issue of math but of political courage and thus is much more difficult to predict.

See Grits extensive past coverage of the surcharge and efforts to repeal it.

Sunday, August 17, 2014

Economics of Texas' border 'surge' unsustainable

I'm glad to see Texas legislators are beginning to question the enormous ad hoc expenditures recently approved for the governor's ill-considered border security surge. Reported the Texas Tribune (Aug. 12):
“The border has got to be secured. We’ve got to stop this,” said Committee Chairwoman Jane Nelson, R-Flower Mound. But the federal government would have to step in to make the effort sustainable, she added. “Month by month, we’re draining state resources that should go to education, should go to highways, should go to water, and we can’t do it forever.”

Democratic Sens. Juan “Chuy” Hinojosa of McAllen and Judith Zaffirini of Laredo emerged as the strongest critics of the deployment. Hinojosa said giving more funding to the Texas Department of Public Safety, which ramped up its border presence in June, would have been more effective than sending in the National Guard. Hinojosa voiced concerns that the National Guard’s concentration in the Rio Grande Valley would simply encourage smugglers and traffickers to move to Laredo and other points north.

"Those are issues that I think were not really thought out and planned out," he said. ...
National Guard and DPS costs will total $17 million to $18 million per month. [Adjutant General John ] Nichols said the costs for August will be somewhat lower, as many troops are still in training and not yet at the border, but the money will probably dry up by mid- to late October. Without a new infusion of financial support, he said, the Guard would then have to begin a gradual drawdown of troops.
Finally! After the state has thrown hundreds of millions of dollars at misbegotten border security boondoggles with little to show for it, the budget numbers are getting SO big that the Lege must confront head-on how to fund it. Given that there are no cost-benefit metrics to show these surges help anyone at all, at any level - especially compared to other public-safety expenditures like treatment courts or anti-recidivism and reentry programs -  eventually one imagines the surge must cease, possibly as soon as October, when the state is projected to run out of funds. Will the 84th Legislature, with Rick Perry out of the picture, choose to spend that money to keep DPS and the National Guard at the border instead of on education, healthcare or roads? Who knows? But it's clear the status quo of a joint DPS-Guard surge is as economically untenable as it is strategically dubious. To keep it up, they'll have to raise taxes or cut somewhere else.

Prison closures, anyone?

CORRECTION: An earlier version of this item misidentified Adjutant General John Nichols as state Sen. Robert Nichols. Grits regrets the error.

Saturday, August 16, 2014

I hope they don't come out with a stat on bloggers

The FBI says 80 percent of police officers are overweight. "Researchers have said law enforcement personnel are 25 times more likely to die from weight related cardiovascular disease than the actions of a criminal."

Craig Watkins questioned over use of forfeiture funds in car-crash settlement

I admire Dallas DA Craig Watkins' work on innocence issues but some of his other decisions can be hard to square, like this item from the Dallas Morning News (Aug. 16). Here's the gist:
Dallas County District Attorney Craig Watkins came under criticism Friday for his secretive handling of a 2013 car crash in which he rear-ended another vehicle on his way to a speaking engagement at the Park City Club.

Watkins paid the driver of the other vehicle nearly $50,000 and shelled out more than $11,000 to a repair shop using money from the forfeiture fund — cash from seized assets — that he controls. Part of the settlement required the driver to agree not to tell the media about the crash or he would have to pay Watkins — not the DA’s office or the county — $40,500.

Dallas County Commissioner Mike Cantrell, the court’s lone Republican, said he’s concerned whether the funds were legally used and he wants a state investigation.

“It is almost like he was trying to buy silence with public funds,” Cantrell said of Watkins, a Democrat. “We are going to need to turn this over to the state attorney general.” ...
Generally, the settling of legal claims or lawsuits must be approved by the commissioner’s court, so it’s unclear whether the Watkins agreement is binding since it wasn’t approved by commissioners. For that reason, Cantrell said he believes Watkins entered into a contract on behalf of Dallas County without any legal authority to do so.

“We never saw the claim, we never knew the lawsuit was filed and we never knew anything about it,” he said. “The use of those funds out of the forfeiture account were clearly non-law enforcement uses.”

But [DA Office spokeswoman Debbie] Denmon said commissioners didn’t need to be informed because Watkins did not spend county money.

County employees are required to fill out a form when they are in an accident. Watkins did not fill out a form. Instead, the DA’s office sent the accident report to the county administrator. Denmon said the DA’s office believed that it acted properly.

“It’s more detailed and by the trooper,” she said, and not Watkins’ version of the events.
This may or may not be legal - entering into legal settlements without notifying the commissioners court seems dicey to this non-attorney - but either way it doesn't pass the smell test.  It sounds like Watkins' plan is to double down and insist that using asset forfeiture funds this way was kosher. That wouldn't be my strategy at a time when the feds are already investigating. An auto-repair guy told the paper the FBI asked him not to speak to anyone until they'd interviewed him. He doesn't have to admit wrongdoing, but it would help Watkins in his PR battle at least to acknowledge the bad optics.

From a campaign perspective, the worst part for Watkins - who faces Republican Susan Hawk in the November election - is that the report came out completely free of his opponent's fingerprints. Her campaign issued a "no comment" and let others handle the front-line assault. So the media narrative isn't that this is a campaign attack, though now Hawk's campaign can pick it up and bludgeon Watkins with it for the next three months. Watkins may still win anyway, but this news won't help him.

MORE: Here, here, and here from Tanya Eiserer at WFAA-TV who first broke the story.

Friday, August 15, 2014

Date set for hearing on interim charges on electronic privacy

As predicted, hearings on the Texas Senate State Affairs Committee's interim charges regarding electronic privacy are back on now that state Sen. Craig Estes has been elevated to chairman. The committee has announced a meeting specifically on those three, related interim charges at the capitol on Sept. 16 at 8 a.m.. They'll be taking public testimony.

My hopes for the hearings are that the committee recommends a) a version of the Estes/Hinojosa/Hughes legislation to require warrants for police to access cell-phone location data, and b) new restrictions on license-plate readers including limits on how long location data can be retained.

Some parts of the interim charges, particularly related to privacy vis a vis commercial vendors, I have less expertise than with law enforcement matters and thus fewer concrete suggestions regarding privacy enhancements. But I did see a related, recent essay - a speech, actually, to the Black Hat hacker conference - that offered several thoughtful suggestions that might inform those discussions.

The Obama Administration has consistently taken the position that neither cloud-based email nor cell-phone location data should require warrants for police to access them. Texas took a huge step last session in the opposite direction, passing the nation's first requirements for police to obtain warrants to access cloud-based email and other content. During the 84th session in 2015, we have the opportunity to similarly exert leadership regarding location data - both in the form of cell-phone metadata and license plate readers. This hearing September 16 represents an opportunity for the Senate to snub the Administrations' pro-snooping positions and contrast the state as a bastion of liberty compared to the Nasty Old Feds. Plus, it's the right thing to do and the public, including the conservative base and the state's thriving tech industry, supports it. What a happy convergence of interests!

Innocence, private prisons, overly punitive sex-offender laws, and more

Just a few items I wanted to point out from other sources:

First, sorry to see Paul Kennedy put his fine blog, The Defense Rests, on hiatus. He had great posts there regularly right up to the end. Paul, good luck with all you've got on your plate. Your blog will be missed. I hope you decide to pick it up again someday.

I checked in at Texas Monthly's website for the first time in a while and was pleased to find three innocence-related items on their home page, a couple of which I'd linked to in roundups before:
With Michael Hall, Pam Colloff and Nate Blakeslee on staff, one would expect TM to be strong in this area and they consistently are. Good stuff.
Texas Prison Bidness also has some notable new posts:
And here's some good stuff from Doug Berman's Sentencing Law & Policy blog:
Finally, read Jim Schutze and Steve Blow from the Dallas Observer and Dallas Morning News, respectively, on counter-productively punitive sex offender residency restrictions.

More from me later, perhaps - lots of writing to do today.

Thursday, August 14, 2014

Austin PD wants 20% budget hike to fight less crime, respond to fewer calls

The Austin Police Department wants an astonishing 19.5% budget increase in the coming year to hire more officers, reported the Austin Statesman (Aug. 13), even though, as Council Member Bill Spelman questioned "why the city needs more police officer if crime rates, traffic fatalities and calls for service are down compared with last year," which for the record is a very good question. Chief Art Acevedo said the new officers would go to combat property crime. Because, I guess, that's a new thing.

Grits agrees the department has long needed to improve its focus on property crime, But there are smarter, more creative ways to do that than a 20 percent department-wide budget hike. Why not turn away from failed methods of combating property crime while freeing up officers for more productive crime fighting tasks? Where are the fiscal conservatives when you need them?

Driverless cars would transform the legal profession, law enforcement

At the blog Above the Law, attorney Mark Hermann speculates on the future of the legal profession if and when driverless cars like the one being prototyped by Google ever become a large-scale reality. "Do you do DWI defense work?," he wrote. "Your practice area may not exist in ten years. Do you participate in automotive accident or product liability cases? The world may be about to shift under your feet."

Moreover, "Law enforcement (and the converse — criminality) may be transformed. Can driverless cars be hacked to make kidnapping much simpler? Or packed with explosives to be turned into self-guided bombs? Or simply used as high-speed getaways cars, which will permit the bad guys to shoot at the police while the car navigates its high-speed escape? (To avoid these problems, will we relinquish our right to privacy, permitting our cars to be monitored and our locations always known?)"

Then there's the revolution in liability law brought on by driverless cars:
Needless to say, driverless cars will transport product liability law into a brave new world. Let’s assume that driverless cars are remarkably safe: Instead of the 30,000+ people who now die annually in car accidents in the United States, suppose driverless cars result in a mere 10,000 deaths every year. And assume that the public accepts — as logic dictates, but emotion may not — that saving 20,000 lives per year is an improvement, so driverless cars should be endorsed. Who would bear the cost of those 10,000 fatal accidents? Vehicle owners? Or users? Or manufacturers?

Can we blame the mechanic who repaired a driverless car a few weeks before the crash? Or the hobbyist who got under the hood of his car and tinkered with it?
Grits had a pair of related posts last year wondering aloud how driverless cars might affect law enforcement and the criminal justice system generally. In particular, since most police interactions with the public occur at traffic stops, what will cops do with themselves once there are no more traffic scofflaws to pull over? The era of the pretext stop will have come to an end.

Already the key elements of driverless cars are being implemented in increments. I've seen TV ads for cars that parallel park themselves. According to the latest issue of Popular Mechanics presently sitting on my coffee table, "At speeds of up to 30 mph" the 2015 Subaru Legacy "automatically brakes if a collision is imminent." For the most part I think these changes will be positive, certainly as measured in driver safety. But there will be growing pains and, when the transformation takes place in earnest, it will be as disruptive as anything to law enforcement since the invention of the V-8 engine. You read it here first.

Monday, August 11, 2014

Reshuffling chairs benefits cell-phone privacy bill in Texas Senate

If, like me, you're prone to indulging in political tea-leaf reading, here's some potentially good news for Texans who favor keeping their cell-phone location data private!

In 2013, state Sen. Craig Estes (R) of Wichita Falls and Sen. Juan "Chuy" Hinojosa (D) of McAllen both filed ultimately unsuccessful legislation to require law enforcement to gain warrants to access cell-phone location data, except in emergencies or at the request of the phone owner. A similar provision by state Rep. Bryan Hughes passed the Texas House as an amendment on a 126-4 vote but was not included in the final bill.

Now, Sen. Estes chairs the Senate State Affairs Committee which has received an interim charge to recommend legislation on a topic he was already championing! That should give cell-phone privacy legislation a significant boost in the 84th session.

The story of the current interim charges on electronic privacy is an object lesson regarding the unpredictable vicissitudes of politics. Interim charges were first requested by the House Criminal Jurisprudence Committee, but were not assigned by Speaker Joe Straus. One hopes Straus is not blocking the effort to spite the House author, with whom he has feuded in the past on other matters. After all, the bill had 107 joint and co-authors including a majority of reps from both parties! Most of his members want this!

Anyway, those of us hoping for movement on this bill were a bit deflated. Then, Lt. Gov. David Dewhurst revived the issue, assigning an excellent set of interim charges on these and related topics to the Senate State Affairs Committee. Suddenly, it looked like the issues would receive a thorough vetting before the 84th Legislative session after all. At least, right up until State Affairs Committee Chair Robert Duncan left his post to become Chancellor of Texas Tech and the Lt. Governor lost his primary and became a lame duck, as did the committee's vice chair, Robert Deuell (a great if under-remarked loss to the body on many levels). With the committee leaderless, a State Affairs staffer told me as recently as last month that they likely wouldn't hold hearings and would somehow generate a committee report without them.

Texas Senate State Affairs Chairman Craig Estes
Then, the Lt. Governor recently named state Sen. Craig Estes as the new chair of the State Affairs committee, a development I missed while vacationing in Mexico. As one of two Senate authors of legislation to require warrants in most cases for police to access cell-phone location data (Chuy Hinojosa was the other one), one would expect him to confront those aspects of the committee's interim charges with more than just a passing interest. These interim charges just got a LOT more interesting.

The House was already primed to pass the Hughes/Estes/Hinojosa legislation and this development sets the bill up to have a much better chance in the Senate in 2015.

Of course, there's many a slip twixt the cup and the lip. If Dan Patrick comes in as Lt. Governor and replaces Estes as State Affairs chair, that could reverse what currently looks like home-field advantage for the bill in that particular committee, depending on the replacement. And who knows where Greg Abbott will come down on the topic? Time will tell. But the odds of a cell-phone privacy bill's passage next year improved tremendously with Craig Estes' ascension to chairman of State Affairs, no question about it.

Sunday, August 10, 2014

Governor may boost forensic reviews with grants

At a panel on Friday concluding a continuing legal education seminar sponsored by the Texas Criminal Defense Lawyers Association, Gov. Rick Perry's new general counsel, Mary Ann Wiley, said that before the next legislative session the governor's office plans to issue grants to assist processing cases involving potentially large-scale forensic errors, like the Forensic Science Commission's ongoing hair and fiber analysis or the arson review undertaken by the state fire marshal.

That's welcome news; those reviews have been rather ad hoc and funding will not only deploy more resources but help supply structure and, God forbid, maybe even greater accountability. It would also better position the state to implement the sort of rapid response to forensic errors suggested in last year's "white paper" from the Forensic Science Commission and the Court of Criminal Appeals' Criminal Justice Integrity Unit.

For Perry, this move doubles down on his recent self-positioning as a moderate reformer on criminal justice headed into the 2016 presidential sweepstakes.

Wiley also predicted that episodes of forensic error will continue to arise and reiterated her recent suggestion that the Legislature create an office of forensic writ counsel similar to the Office of Capital Writs to provide counsel in cases like the hair and fiber review or the Jonathan Salvador fiasco. She said the idea has gotten as far as discussions with a potential legislative sponsor, so expect some action on this when the 84th Legislature meets next year.

Tuesday, August 05, 2014

Timid proposal on surcharges offers no solution for drivers stuck in Lege-created morass

Your correspondent spent this morning waiting around to testify to the Texas House Homeland Security and Public Safety Committee about the Driver Responsibility surcharge on behalf of the Texas Criminal Justice Coalition. The committee was assembled in part to discuss draft legislation (pdf) to enact modest reforms to the program, but I testified on behalf of TCJC that their suggestions are too timid.

TCJC had earlier this spring submitted written testimony to the committee recommending reforms and there were faint hints of some of those proposals in their draft, though in my estimation the recommendations were far too tepid. For example, they agreed to change from three consecutive years of surcharges to a single year with a payment plan, but the reductions in the draft document - none for DWIs, $100 for other offenses - aren't large enough to entice people whose surcharge debt may run into the thousands.

All of the suggestions in the draft legislation were forward looking, taking effect for cases after September 2015.; none of them addressed the backlog of drivers owing surcharges, including around 1.4 million who presently have no licenses because of surcharge nonpayment.

It was particularly disappointing that the draft did not direct the Department of Public Safety to implement another Amnesty program. They have the authority but have only ever done one and have said they don't plan to do another any time soon. But with hundreds of thousands of unpaid surcharges dating back a full decade, at this point, it will be impossible to clear out those old files without some sort of renewed or even beefed up Amnesty program, I told the committee.

The principle element of the bill would allow judges to dismiss charges for driving with no insurance or no license if they get the insurance or license within 20 days. Judges are probably already doing that, so it would codify an unwritten practice. A judge from Harris County (Hughes? I didn't get her name in my notes) testified that 20 days was too short for DWLI, because it took longer than that (perhaps up to 90 days) to schedule and take a DPS driving test if you don't have a driver's license.

Perhaps most significantly in the big picture, the draft would eliminate the three-year structure of the surcharge, reducing lower-level surcharges from $750 over three years to $650 assessed all at once. I told the committee that if drivers had the $650 they'd have bought insurance. Chairman Joe Pickett emphasized that amount could change and was just a placeholder; I acknowledged that and said our recommendation was that they'd need to lower the amount significantly to do much good. It's true, though that the staggered three-year civil payments on top of whatever crimnal fines were already paid has been a tremendous source of on-the ground confusion. If this bill passes, there will be just one un-just, unnecessary extra payment instead of three.

DWIs would also become a one-year surcharge under the committee draft but the amounts would stay the same: $3,000 total on the first offense, $4,500 on the second. DWIs already suffer from a 58% non-payment rate on surcharges, the committee was told. In past committee hearings, a rep from the Texas Association of Counties testified that DWI conviction rates had precipitously declined, mostly because judges and prosecutors were working with defense attorneys to find workarounds (like pleading to obstruction of a roadway) that don't incur surcharges. I suggested that if they thought drunk drivers should pay $3,000 they should put that in the criminal penalty and not have a separate, civil surcharge.

I meant to suggest, I see in my notes, that allowing deferred adjudication for DWI would give counties an option to prosecute DWIs without triggering the surcharge. But I forgot. Oops. Well, maybe their staff are readers.

Chairman Pickett emphasized repeatedly that he did not support getting rid of the Driver Responsibility surcharge, only modifying it slightly to address what he's dubbed are its most objectionable aspects. But how to judge which parts are the most objectionable? ¿Quien sabe? This baby is so reprehensible it deserves to be thrown out with the bathwater. Then set on fire. The swath of human misery this program has left in its wake is difficult to overstate. Very few judges or even prosecutors with first-hand experience have a kind word to say about the surcharge, one finds.

Speaking of which, Judge Edna Staudt, a Williamson County JP, made the excellent point that the thing the Lege liked about the program was the money but the thing causing all the problems is the policy of suspending driver's licenses for nonpayment. That's what's filling the jails and multiplying the number of offenders driving without insurance and/or with an invalid license. If you're looking for incremental reforms, why not eliminate all driver's license suspensions associated with nonpayment of surcharges? That'd mitigate much of the harm.

At this point, even the hospitals say they're fine with eliminating the Driver Responsibility program if the Lege will come up with some other source of funds for trauma hospitals, an idea with which nobody disagrees. All that's required is the political will to identify and implement a revenue source. TCJC suggested several in a 2013 report (pdf); a judge from Harris County suggested others today. And the truth is, the state will likely enjoy a surplus large enough next year that it could spend that sort of money volitionally - just because hospitals are a public good - without having to raise taxes. They could do it just by spending a portion of the budget surplus projected for the next biennium, if anybody really wanted to fix the problem.

Finally, just for my own reference, I should mention that while I was off for vacation the Texas Tribune published an item titled, "Driver program relies on lender fined by feds." Give it a read and see what you think: Something, or nothing? I'm a bit surprised none of those issues came up at today's hearing, which was narrowly focused on the proposed legislation.

MORE (8/5): See coverage from the Dallas News. A minor clarification: I am not "director" of the Texas Criminal Justice Coalition, I just work for them on this issue as a consultant. Also, reporter Christy Hoppe ID'd the judge mentioned above whose name I failed to record in my notes: Harris County Criminal Court Judge Jean Spradling Hughes. AND MORE: From Texas Public Radio.

See prior, related Grits posts:

Marshall Project: Prosecutor misled court about aid to Willingham snitch

The brand spanking new Marshall Project, a nonprofit journalism project focused on criminal justice, launched its first big feature this week: An examination by Maurice Possley of the remaining evidence against Todd Willingham outside of now-debunked arson testimony, honing in in particular on a confidential informant, Johnny Webb, who later recanted his testimony. Possley was one of the Chicago Tribune reporters who first credibly alleged that, by killing Willingham, Texas may have executed an innocent man.

The New York Times earlier this spring reported that Webb's cooperation agreement had never been disclosed to the defense. The Marshall Project's notable addition to the story: At trial, John Jackson told the court the informant received no benefit from his testimony. But in reality, he arranged substantial financial assistance through a third party and aggressively sought clemency for the Webb even after he ascended to the bench and was no longer a prosecutor, Possley reported. The article does a nice job of linking to primary sources for most of its more controversial claims.

See more analysis of the new revelations from a national Innocence Project press release. The Dallas News editorial board opined in response that, "Outrageous allegations of unethical or illegal gamesmanship in the prosecution of Cameron Todd Willingham, who was executed in 2004, need a thorough and transparent examination by the State Bar of Texas."

Combine this Marshall Project article with David Grann's New Yorker piece on the case, the Texas Forensic Science Commission's mammoth report (large pdf) on junk arson science in this and the Ernest Willis case, Possley's original Chicago Tribune report (with Steve Mills), Judge Charlie Baird's never-issued opinion from the halted court of inquiry, and, if I may be so bold, Grits' Willingham coverage, which contains links and references to lots of contemporary material, and you'd have a pretty decent summary of all that's happened before and after Willingham's 2004 execution.

This deadly fire nearly a quarter century ago in Corsicana must be one of the exhaustively reported (probably non-) crime stories of the modern era. If it can be uncovered via methods of law, journalism, science, or government inquiry, it's likely been explored in the Willingham case. Ironically, so many resources have been thrown into this endeavor precisely because Todd Willingham is dead. If he'd been incarcerated on a life sentence like Ed Graf (who won a new trial, delayed until September while the DA looks for their lost files, and is now sitting in the McLennan County Jail), sadly I doubt the national press would blink an eye.

Saturday, August 02, 2014

FBI accused of dragging feet on hair and fiber review; Texas plugging along

As the Forensic Science Commission this week in Fort Worth discussed Texas' nascent review of convictions involving possibly erroneous hair-and-fiber testimony, the FBI drew fire for dragging its heels on similar reviews at the national level, especially in death penalty cases, allowing three inmates including one in Texas to be executed without coming forward to say testimony in their cases was flawed. See the recent 146-page report (pdf) from a DoJ Inspector General at the center of the recent controversy.

New Scientist mentioned that New York and North Carolina have also launched state-level reviews and that, "of the 10 per cent of cases reviewed so far, the 'vast majority' contained errors. As a result, 136 defendants, including two on death row, will receive letters informing them of their right to DNA testing as a means of proving their innocence. This is in addition to 23 letters that went out last year, including to 14 people on death row." The magazine reminds us that:
hair analysis is just one of many forensic disciplines that hinge on using a microscope to visually compare two samples and declare a match. Ballistics, fibre analysis, tyre and shoeprint comparison and tool and bite-mark analysis all take a similar approach. All came under heavy criticism in a landmark report on the state of forensic science published in 2009.

"This review is likely to have an effect on any discipline where they didn't have a statistical reference to estimate the chances of another person being a match," [national Innocence Project cofounder Peter] Neufeld says. He believes it could even filter across to disciplines with a more robust statistical basis such as fingerprinting, but which have been exposed as flawed in recent years.

Staffing the zoo: Prosecutors bail on McLennan DA

Prosecutors and staff at the McLennan County District Attorney's Office are jumping ship, reported the Waco Tribune Herald, with three prosecutors leaving in the last week - including DA Abel Reyna's first assistant, Greg Davis - and eight employees total departing since the new year. Nobody's saying why they bailed but it's not hard to guess. (Budget cuts, rising workloads, unreasonable plea policies, maybe?) If you don't like sweeping shit, don't work at the zoo.

Readers with any direct or even second-hand knowledge of the situation, please regale us in the comments.

Friday, August 01, 2014

Wearable tech and the corrections market

GPS ankle monitor: Looks uncomfortable
Lately, your correspondent has been fiddling in my spare time with a hobbyist-level wearable technology project involving a couple of cheap sensors (which soon will be) wired into a pair of gloves to generate beats, tones, and lights. In the process, I've become more familiar with the state of wearable technology, even attending a Austin techie meetup on the topic a few weeks back.

It's not hard to imagine useful implications in different industries for wearable tech, but as a distinct consumer market, many observers view the field as a disappointment. The Guardian recently asked, "Wearable technology hasn't taken off the way it was expected to - why not?" A few serious, local startups are working on exercise or health-related wearable apps, but consumers haven't bitten beyond a few kids in light-up tennis shoes or cheap club gear. At this point, your refrigerator and thermostat are more likely to talk to your computer than your clothes.

What you don't see in any of the business tech press about wearables are analyses of wearable tech in the law enforcement and corrections industries, though that may be their biggest field of success so far. The use of GPS trackers on probationers and pretrial defendants out on bail has become so ubiquitous that larger departments suffer from data overload. In treatment courts, but also in some jurisdictions for regular DWI probationers, so-called SCRAM technology - an anklet with a sensor that measures alcohol in one's perspiration - are so popular that Texas courts can't afford nearly all of them that judges would like to use. (I'm waiting for the day probationers' anklet can talk to them; the tech already exists.)

Awkward police 'body cam'
Setting aside community supervision issues, police officers today are ever-more frequently decked out with body mics and cameras, a market that Taser International leads almost by default. Police today often make traffic stops in state of the art body armor, boasting an array of gadgetry around their belts that remind one of Batman. To the extent that routine tech can be incorporated seamlessly into something the officer is wearing anyway - especially tech that can transmit useful data back to a supervisor in real time - there's a significant law-enforcement market to be had.

For quite some time, cops and crooks arguably have been the biggest markets for "wearable tech," even if it's seldom discussed in that frame. That will remain true for the near future, with much room for expansion in that market in the near term. There's even a (perhaps overly optimistic) argument to be made that wearable corrections tech could "make it possible to replace the system of large-scale imprisonment," that manufacturers in that market contribute to progressive de-incarceration goals.

I'd love to see a company like Adafruit take on wearable tech for law enforcement - somebody that cares if the product is ugly, if it's elegant, well-designed, comfortable, if it works as advertised. If Adafruit started re-imagining police body cams and alcohol sensors for probationers, IMO they'd leave Taser and SCRAM in the dust. Those folks have forgotten more about wearable tech than the other two companies likely know.

The wearable market so far has pigeon-holed itself largely into areas - exercise and health - where people themselves use generated data, or fashion, where sensor data may trigger an accessory but not necessarily a paper trail. In corrections fields, though, it's police management, probation officers, or pretrial services divisions that make use of the data, not the wearer themselves. Those sorts of institutional customers with significant baseline demand constitute a captive market, if you'll pardon the pun. While it may seem distasteful to design technologies of control, it's better if highly skilled engineers sensitive to the wearers' experience create this tech. Either way, somebody's going to profit from it. Bet on that.

Zocalo, Mexico City, a great place for light-up garb at night
BTW, I do think there's an untapped market for a lot of the light-up or sound-generating wearable stuff for youth, but a lot of those items come relatively cheap from China and suffer from low margins. The more significant profit potential comes when you can find ongoing, real-world uses for wearable-generated data, which is why Grits foresees big profits for wearables in the corrections market.

AN ASIDE: Just for fun, we took some light-up garb with us to Mexico City to the zocalo after dark: The granddaughter's hoodie with EL Wire stitched around the edges, a few dozen small glow sticks, a couple of balloons with flashing RGB LEDs inside them, and three battery operated EL Wire strands long enough to use as a jump rope, one of which ended up lining a hat. Folks approached in gaggles wanting to buy one or the other of the light-up goodies, with somebody offering five times for a strand of EL Wire what I'd paid for it. We gave away glow-stick bracelets to the kids and referred would-be customers to the websites where I'd bought them. (This was a great way to meet families with kids, btw.) When it was bed time, the young'un gave away the balloons with flashing LEDs to a couple of little girls in the square and distributed the last of the glowsticks to a passel of teenagers before she turned, hoodie flashing, and we walked back through the seemingly ever-present multitude to our hotel. SEE MORE from a kid-centric vacation here.