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December 2003
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The Sham Affidavit Doctrine in Texas
By Judge Randy Wilson
Illustration by Gilberto Sauceda
You are defending a lawsuit and have just finished deposing the plaintiff. You feel smug because the plaintiff made a fatal admission to his case during the deposition. You immediately begin preparing your motion for summary judgment and confidently advise your client that, because of your brilliant deposition, summary judgment for defendant is all but assured. After you file the summary judgment motion, you put it out of your mind because victory seems certain. Imagine your surprise when, a week before the summary judgment hearing, the plaintiff files his response and includes an affidavit recanting his prior position at his deposition and swearing, for the first time, to completely new and different facts. What can you do about a summary judgment affidavit that contradicts previous deposition testimony?
Texas courts have wrestled for some years with the question of whether a fact issue is presented by submitting an affidavit that conflicts with previous deposition testimony. Unfortunately, there is a split in the cases, not only among the various courts of appeals, but also between some of the courts of appeals and the Texas Supreme Court.
The Texas Supreme Court Standard
The Texas Supreme Court first confronted the issue of a conflict between a deposition and an affidavit in 1962 in Gaines v. Hamman.(1) There, the plaintiff first testified in deposition that he had no express contract with the defendant. Later, in response to a motion for summary judgment, the plaintiff swore that such a contract existed. Of course, at the summary judgment stage, the issue is whether “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”(2) The court in Gaines held that “there is no basis for giving controlling effect to a deposition as compared to an affidavit.”(3) So long as the affidavit meets the usual requirements of personal knowledge and is not conclusory, then the mere fact that a deposition is more detailed than an affidavit does not “vest it with dominant authority.”(4)
Most recently, in 1988, the Supreme Court reaffirmed Gaines in Randall v. Dallas Power & Light Co.(5) The court once again held that “if conflicting inferences may be drawn from a deposition and from an affidavit filed by the same party in opposition to a motion for summary judgment, a fact issue is presented”(6) and summary judgment should be denied.
The Sham Affidavit Doctrine In Federal Court and Elsewhere
Shortly after the Texas Supreme Court opinion in Gaines, the federal courts began considering the issue of conflicts between an affidavit and the affiant’s deposition.(7) The sham affidavit doctrine is usually traced to the Second Circuit opinion in Perma Research & Dev. Co. v. Singer Co.(8) There the Second Circuit held that the trial court was permitted to disregard an affidavit that conflicted with prior deposition testimony:
If there is any dispute as to the material facts, it is only because of inconsistent statements made by Perrino the deponent and Perrino the affiant. … If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”(9)
The last four words of the opinion thus gave birth to what has come to be known as the sham affidavit doctrine, i.e., a trial court can disregard an affidavit that offsets the affiant’s prior deposition testimony where the contradiction is unexplained and unqualified by the affiant. Following Perma Research, the federal circuits that have considered the sham affidavit doctrine have adopted it in one form or another.(10)
An offsetting affidavit should not be ignored in all circumstances, however. At least two exceptions have developed. First, a party is permitted to introduce an offsetting affidavit if he can demonstrate he was confused by the questions during the deposition.(11) For example, in Ramos v. Geddes,(12) plaintiff’s expert testified in deposition that someone did not violate the standard of care, but there was confusion as to the identify of the person referred to. Subsequently, the expert provided an arguably contrary affidavit concerning the standard of care. On these facts, Judge Kazen concluded that legitimate confusion existed and permitted the affidavit.(13)
The second exception arises when the affiant discovers new evidence that was not available during the deposition.(14) This exception is generally well acknowledged and recognized.(15)
Additionally, the sham affidavit doctrine is generally well recognized in most states.(16) Some states, however, hold, as the Texas Supreme Court held in Randall, that a trial court is obliged to consider all evidence in opposition to a motion for summary judgment, including an affidavit that contradicts a prior deposition.(17)
Sham Affidavits in Texas
The First Court of Appeals in Houston was the first court in Texas to adopt the sham affidavit doctrine. In Farroux v. Denny’s Restaurants, Inc.,(18) the plaintiff alleged that he got food poisoning from eating a Grand Slam breakfast from Denny’s. In deposition, the plaintiff admitted that his personal physician told him that there were too many possibilities to determine whether the Denny’s food caused his illness and that no physician ever told him that the Denny’s breakfast caused any of his health problems. In response to Denny’s’ motion for summary judgment, the plaintiff submitted an affidavit stating that his physician told him his food poisoning was the result of the Denny’s meal.
Confronted with such conflicting evidence, the First Court of Appeals concluded that the affidavit was a sham and could be disregarded.(19) Specifically, the Court held:
A party cannot file an affidavit to contradict his own deposition testimony without any explanation for the change in the testimony, for the purpose of creating a fact issue to avoid summary judgment. If a party’s own affidavit contradicts his earlier testimony, the affidavit must explain the reason for the change. Without an explanation of the change in the testimony, we assume the sole purpose of the affidavit was to avoid summary judgment. As such, it presents merely a “sham” fact issue.(20)
The court noted the two often-cited exceptions to the sham affidavit rule, i.e., “an affiant could explain that he was confused in a deposition, or that he discovered additional, relevant materials after the deposition.”(21)
Significantly, the Farroux court cited only one federal court decision to support its opinion(22) and failed even to mention the Texas Supreme Court decisions of Gaines and Randall that are directly on point and contrary to Farroux.
Following the Farroux decision, many of the courts of appeals have similarly adopted the sham affidavit doctrine. Thus far, the courts of appeals of El Paso,(23) Amarillo(24) Austin(25) Texarkana(26) and Houston (14th District)(27) have cited Farroux with approval and adopted the sham affidavit doctrine.
The San Antonio Court of Appeals surveyed the various decisions including the Supreme Court decision in Randall, which it characterized as “the most tolerant view of conflicting statements between the same witness’s testimony in a deposition and affidavit.”(28) After contrasting Randall with Farroux, the court observed “most differences between a witness’s affidavit and deposition are more a matter of degree and details than direct contradiction. This reflects human inaccuracy more than fraud.”(29) After reviewing the different lines of cases, the court held:
We conclude that a court must examine the nature and extent of the differences in the facts asserted in the deposition and the affidavit. If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances of detail, this is grounds for impeachment, and not a vitiation of the later filed document. If, on the other hand, the subsequent affidavit clearly contradicts the witness’s earlier testimony involving the suit’s material points, without explanation, the affidavit must be disregarded and will not defeat the motion for summary judgment.(30)
After reviewing the record, the court concluded that any differences between the affidavit and the deposition were minor and could not be characterized as a sham.(31)
In contrast to Farroux and the courts that have followed that decision, the Waco(32) and Corpus Christi(33) courts have flatly rejected the doctrine and have adhered to the Supreme Court’s decision in Randall. Similarly, both the Dallas and Fort Worth Courts of Appeals appear to follow Randall.(34) In Thompson v. City of Corsicana Housing Auth.,(35) the Waco court criticized Farroux for relying on federal authorities for creating the sham affidavit doctrine in Texas, noting that the Supreme Court has expressly disavowed the application of federal procedural standards to summary judgment motions filed under Rule 166a.(36) The court determined it would adhere to its previous position(37) and ruled, “if a party provides inconsistent or conflicting summary judgment proof, that party has created a fact issue for the trier of fact to resolve.”(38) As a result, if the resolution of a summary judgment depends on the credibility of affiants or deponents, then “the motion should not be granted.”(39) The court recognized that its ruling could permit an unscrupulous party to create a sham fact question to defeat summary judgment by filing false affidavits. However, the court should rely on the attorneys as officers of the court to be candid with the court.(40) If an attorney fails to observe his ethical obligations, then sanctions can be imposed on the attorney(41) or the party.(42) The Corpus Christi Court of Appeals followed Thompson and concluded, “any inconsistency or conflict between a party’s deposition and affidavit is not a reason to exclude that evidence in a summary judgment proceeding.”(43) As a result, if a trial court excludes an affidavit based on an alleged inconsistency with a deposition, the court ruled that the trial court abuses its discretion.(44)
Authority of Courts to Disregard Offsetting Affidavits
Courts that disagree with the sham affidavit doctrine usually argue that a court is precluded under the summary judgment rules from making a determination of the credibility of the witnesses. Specifically, both the federal and Texas rules preclude a court from weighing a witness’ credibility at the summary judgment stage.(45) “The trial court’s duty is to determine if there are any fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits.”(46) Thus, the argument goes, if a court gives preference to a deposition and disregards a conflicting affidavit, the court is necessarily making an impermissible credibility determination.(47)
Courts that have approved the sham affidavit doctrine, however, have concluded that sham affidavits do not truly raise issues of credibility because the affidavit is precluded from the witnesses’ previous unambiguous admissions.(48) The court is not weighing the credibility of two different witnesses. Rather, the court is ignoring an impermissible affidavit because it was fraudulently filed.
Ironically, both opponents and proponents of the sham affidavit doctrine point to Rule 166a of the Texas Rules of Civil Procedure to support their respective positions. Opponents of the doctrine argue that Rule 166a(h) only empowers a court to impose sanctions for filing an affidavit “in bad faith or solely for the purposes of delay.”(49) The San Antonio Court of Appeals noted:
While this section [166a] provides penalties for the making of affidavits in bad faith, the striking of the offending affidavit or pleading is not made one of them. We think it rather apparent that the trial judge was of the opinion that appellants were evasive and equivocal of statement and were trifling with the court by raising frivolous and groundless defenses. But such conclusions necessarily involve fact questions relating to the credibility of witnesses, which under our system of jurisprudence must be determined by a jury (when demanded) in actions to determine civil liability.(50)
Proponents of the sham affidavit doctrine, however, also point to the language of Rule 166a to support their argument that a court is empowered to ignore an affidavit submitted in bad faith. By its very terms, Rule 166a(c) authorizes a summary judgment when “there is no genuine issue of material fact.”(51) By ignoring an affidavit submitted in bad faith, the court is making a determination that the fact dispute is not genuine, a determination that is expressly permitted by the rule. Commenting on the virtually identical federal rule, the Seventh Circuit observed:
Federal Rule of Civil Procedure 56 empowers a court to make a threshold determination of whether a factual issue is “genuine.” This power does not emanate from the court’s role as a fact-finder, a role which lays dormant during the summary judgment process. Rather, this power emanates from a court’s ability to make an initial assessment of any evidence. A district court exercises its prerogative to assess evidence at trial by determining whether any evidence is admissible. The court is not acting as a fact-finder when it makes such determinations. A district court also exercises its prerogative to assess evidence at the summary judgment stage by determining whether an alleged factual conflict is “genuine.”(52)
Where Do We Go From Here?
The Texas courts of appeals have gotten ahead of the Supreme Court on the issue of conflicts between summary judgment affidavits and depositions. More than 15 years have elapsed since the Texas Supreme Court has addressed the question of the so-called sham affidavit. Since that time, the federal courts have fully developed the sham affidavit doctrine and many of the Texas intermediate courts have followed suit. However, a strange split of authority has developed within the Texas state court decisions. Not only are the various Texas courts of appeals split on sham affidavits, but at least six of the courts of appeals seem to conflict with prior Supreme Court authority. The Supreme Court needs to weigh in and clarify the issue.
Summary judgments are intended to provide a useful tool to narrow issues and screen cases that have no merit as a matter of law. If legitimate summary judgments can be defeated by simply filing an affidavit, regardless of the truth of the facts contained in the affidavit, the summary judgment rules in Texas would be thwarted. Trial courts in Texas need to have the ability to disregard an affidavit submitted in bad faith solely for the purpose of defeating a motion for summary judgment.
Notes
1. 163 Tex. 618, 358 S.W.2d 557 (1962).
2. Tex. R. Civ. P. 166a(c).
3. 358 S.W.2d at 562.
4. Id.
5. 752 S.W.2d 4 (Tex. 1988).
6. Id. at 5.
7. The history of the sham affidavit cases is fully explored in Collin J. Fox, Reconsidering the Sham Affidavit Doctrine, 50 Duke L.J. (2000).
8. 410 F.2d 572 (2d Cir. 1969).
9. Id. at 578.
10. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994); Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984); Reid v. Sears Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986); Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir. 1994); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir. 1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986); Van T. Junkins & Assocs. v. U.S. Indus. Inc., 736 F.2d 656, 657-59 (11th Cir. 1984); Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed. Cir. 1992), cert. denied, 508 U.S. 912 (1993).
11. Kennett-Murry Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980). See also RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399 (8th Cir. 1995).
12. 137 F.R.D. 11 (S.D. Tex. 1991).
13. Id. at 12.
14. Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 520 (7th Cir. 1988).
15. 50 Duke L.J. at 288.
16. See Shelcusky v. Algarjulio, 172 N.J. 185, 797 A.2d 138 (2002), for a detailed discussion of the states that recognize the doctrine. See Robinson v. Hank Roberts, Inc., 514 So.2d 958, 961 (Ala. 1987); Wright v. Hills, 161 Ariz. 583, 780 P.2d 416, 420-21 (Ariz. Ct. App. 1989), abrogated on other grounds, James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing and Fire Prot., 177 Ariz. 316, 868 P.2d 329 (Ariz. Ct. App. 1994); Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586, 589-90 (1995); Nutt v. A.C. & S. Co., 517 A.2d 690, 693 (Del. Super. Ct. 1986); Hancock v. Bureau of Nat’l Affairs, Inc., 645 A.2d 588, 590-91 (D.C. App. 1994); Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069, 1070 (Fla.Dist.Ct.App. 1977); Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210, 211 (1981); Tolmie Farms, Inc. v. J.R. Simplot Co., 124 Idaho 607, 862 P.2d 299, 302 (1993); Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 71 Ill.App.3d 562, 28 Ill. Dec. 78, 390 N.E.2d 60, 64 (1979); Gaboury v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind. 1983); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 352 (1983); Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 735- 736 (Ky. 2000); Guenard v. Burke, 387 Mass. 802, 443 N.E.2d 892, 898 (1982); Zip Lube, Inc. v. Coastal Sav. Bank, 709 A.2d 733, 735 (Me. 1998); Gamet v. Jenks, 38 Mich. App. 719, 197 N.W.2d 160, 164 (1972); Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 541 n. 4 (Minn. 2001); Wright v. State, 577 So.2d 387, 390 (Miss. 1991); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 388 (Mo. 1993); Rivera v. Trujillo, 128 N.M. 106, 990 P.2d 219, 221-22 (N.M. Ct. App.), cert. denied, 128 N.M. 148, 990 P.2d 822 (1999); Greene v. Osterhoudt, 251 A.D.2d 786, 673 N.Y.S.2d 272, 274 (N.Y. App. Div. 1998); Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 732-33 (1978), aff’d, 297 N.C. 696, 256 S.E.2d 688 (1979); Delzer v. United Bank of Bismarck, 484 N.W.2d 502, 508 (N.D. 1992); Buckeye Federal Sav. and Loan Assoc. v. Cole, 1986 WL 13274 at *2 (Ohio Ct. App. Nov. 24, 1986); Henderson-Rubio v. May Dep’t Stores Co., 53 Or. App. 575, 632 P.2d 1289, 1294-95 (1981); Price v. Becker, 812 S.W.2d 597, 598 (Tenn. Ct. App.), appeal denied (Tenn. 1991); Webster v. Sill, 675 P.2d 1170, 1172-73 (Utah 1983); Marshall v. AC & S, Inc., 56 Wash. App. 181, 782 P.2d 1107, 1109-10 (1989); Yahnke v. Carson, 236 Wis.2d 257, 613 N.W.2d 102, 108-09 (2000); Morris v. Smith, 837 P.2d 679, 684-85 (Wyo. 1992).
17. See Junkins v. Slender Woman, Inc., 386 N.E.2d 789, 790 (Mass. App. Ct. 1979); Stefan v. White, 257 N.E.2d 206, 208-09 (Mich. App. Ct. 1977); Delzer v. United Bank, 484 N.W.2d 502, 508 (N.D. 1992).
18. 962 S.W.2d 108 (Tex. App. — Houston [1st Dist.] 1997, no pet.).
19. Id. at 111.
20. Id.
21. Id. at 111 n. 1.
22. Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7th Cir. 1996).
23. Morgan v. Straub, 2001 WL 925760 (Tex. App. — El Paso 2001).
24. Trostle v. Trostle, 77 S.W.3d 908 (Tex. App. — Amarillo 2002, no pet.).
25. Elson Thermoplastics v. Dynamic Systems, 49 S.W.3d 891 (Tex. App. — Austin 2001, no pet.).
26. Burkett v. Welborn, 42 S.W.3d 282 (Tex. App. — Texarkana 2001, no pet.).
27. Blan v. Ali, 7 S.W.3d 741, 746 n.3 (Tex. App. — Houston [14th Dist.] 1999, no pet.)(“while we agree that Farroux [cite] precludes the trial court from considering an affidavit that contradicts deposition testimony without an explanation for the change in testimony, the supplemental affidavit does not contradict Dr. Reisbord’s deposition testimony”).
28. Cantu v. Preacher, 53 S.W.3d 5, 9 (Tex. App. — San Antonio, 2001, pet. denied)
29. Id. at 10.
30. Id.
31. Id. at 11.
32. Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547 (Tex. App. — Waco 2001, no pet.).
33. Larson v. Family Violence & Sexual Assault Prevention Center of South Texas, 64 S.W.3d 506, 513 (Tex. App. — Corpus Christi 2001, pet. denied).
34. Belmonte v. Baxter Healthcare Corp., 2002 WL 560996, *2 (Tex. App. — Dallas April 16, 2002) (NO. 05-00-01579-CV)(not designated for publication); Sigler v. Durbec, 2001 WL 432620, *4 (Tex. App. — Dallas April 30, 2001) (not designated for publication); Hale v. Pena, 991 S.W.2d 942, 947 (Tex. App. — Fort Worth 1999, no pet.).
35. 57 S.W.3d at 557.
36. Id., citing Casso v. Brand, 776 S.W.2d 551, 555 (Tex. 1989); City of Lancaster v. Chambers, 883 S.W.2d 650, 657 (Tex. 1994), Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 698 n.5 (Tex. App. — San Antonio 1997, no pet.).
37. Sosebee v. Hillcrest Baptist Med. Center, 8 S.W.3d 427 (Tex. App. — Waco, 1999, pet. Denied); see also Toliver v. Bergman, 297 S.W.2d 208 (Tex. Civ. App. — San Antonio 1956, no writ).
38. 57 S.W.3d at 557.
39. Id.
40. Id. at 558.
41. Id., citing Tex. R. Disciplinary P. 1.06(Q)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (Vernon 1998)
42. Tex. R. Civ. P. 166a(h).
43. Larson v. Family Violence & Sexual Assault Prevention Center of South Texas, 64 S.W.3d 506, 513 (Tex. App. — Corpus Christi 2001, pet. denied); See also Smith v. Mosbacker, 94 S.W.3d 292 (Tex. App. — Corpus Christi 2002, no pet.); Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex.App. — Corpus Christi 1997).
44. Id.
45. Green v. Unauthorized Practice of Law Committee, 883 S.W.2d 293 (Tex. App. — Dallas 1994).
46. Id. at 297. See also Dibidale of Louisiana, Inc. v. American Bank & Trust Co., 916 F.2d 300, 307-08 (5th Cir. 1990)(“[c]redibility assessments are not fit grist for the summary judgment mill”).
47. See Junkins v. Slender Woman, Inc., 386 N.E.2d 789 (Mass. App. Ct. 1979)(“[I]t is sufficient that the plaintiff’s later affidavit, if believed, indicated that the contrary is true. [cite] The conflict presents a question of credibility, which is not to be resolved by the judge on a motion for summary judgment”).
48. See 50 Duke L.J. at 279. See also Babrocky v. Jewel Food Co., 773 F.2d 857, 857 (7th Cir. 1985)(“Plaintiffs confuse credibility issues with the district court’s duty to ignore sham issues in determining the appropriateness of summary judgment. … Otherwise, the very purpose of the summary judgment motion — to weed out unfounded claims, specious denials, and sham defenses — would be severely undercut”).
49. Tex. R. Civ. P. 166a(h).
50. Toliver v. Bergmann, 297 S.W.2d 208, 210 (Tex. Civ. App. — San Antonio 1956, no writ). See also Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547, 557 (Tex. App. — Waco 2001); De Los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 755 (Tex. App. — San Antonio 1990, no writ).
51. Tex. R. Civ. P. 166a(c).
52. Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1212 (7th Cir. 1993).
Randy Wilson was appointed judge of the 157th District Court in Harris County in April 2003. He received his law degree from the University of Houston, summa cum laude, in 1977. He was previously a partner at Susman Godfrey from 1980 to 2003. Judge Wilson has been board certified in civil trial law since 1988.
table of contents
Monday, November 12, 2007
Wednesday, September 19, 2007
How to Reduce Prosecutorial Misconduct
Copyright © 1998 by Carl E. Person
How to Reduce Prosecutorial Misconduct
Prosecutorial Misconduct Can Be Reduced, by Recognizing and Dealing with the Causes of Prosecutorial Misconduct
The apparent reasons for prosecutorial misconduct and abuse are set forth in another website article, Article Explaining Causes of Prosecutorial Misconduct.
One cause seems to be the increased concentration of the economy, which reduces political power of most citizens, and permits the wealthy to control government institutions, including the prosecutor's office. Decreasing concentration of the economy no longer seems possible with existing political institutions, which for the most part have been captured (purchased) by the wealthy.
Another cause is the lack of judicial or other oversight of the prosecutor's office. Inasmuch as the courts have failed to stop prosecutorial misconduct for reasons set forth in such other article, it would seem that some type of extra-judicial oversight could be tried, such as
* complaints to the local grievance committee, with all complaints to be heard publicly, to punish and discourage prosecutorial misconduct;
* complaints to a national body (perhaps a panel of judges or magistrate judges) to hear and resolve complaints against any federal prosecutor, to be handled by persons outside of the District and State in which the accused prosecutor has his/her office;
* automatic assignment of proceedings alleging prosecutorial misconduct to a district court in another state, more than 100 miles away;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to a legislative oversight committee of Congress;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to the American Civil Liberties Union or similar organization.
* Legislation eliminating grand jury secrecy requirements to accomodate the "sunshine" requirements set forth above.
* Use of this website as a meeting point for persons complaining about or interest in prosecutorial misconduct and prosecutorial abuse.
* Use of mailing list on internet and responsible bulk e-mail to inform the citizenry about prosecutorial abuse as it occurs, and how it such abuse is being dealt with by established institutions, such as the local judiciary.
* Obtain an e-mail list of all members of the Senate and House of Representatives and e mail your complaint to them, for their legislative assistants to consider; try to generate a congressional hearing in the Judiciary Committee of both houses to investigate the ongoing prosecutorial abuses, with the idea of writing and enacting curative legislation; [a problem exists in that various ISP's may not permit your mail to go through because such mailing would be called "spamming" or "spam", thereby giving these corporate dominators of internet the self-proclaimed right to stop your messages asking for help.
* Complain to the Department of Justice that its employees are failing to abide by the Standards of Conduct in the Department of Justice or the Model Code of Professional Responsibility which governs all attorneys in the United States.
Copyright © 1998 by Carl E. Person
How to Reduce Prosecutorial Misconduct
Prosecutorial Misconduct Can Be Reduced, by Recognizing and Dealing with the Causes of Prosecutorial Misconduct
The apparent reasons for prosecutorial misconduct and abuse are set forth in another website article, Article Explaining Causes of Prosecutorial Misconduct.
One cause seems to be the increased concentration of the economy, which reduces political power of most citizens, and permits the wealthy to control government institutions, including the prosecutor's office. Decreasing concentration of the economy no longer seems possible with existing political institutions, which for the most part have been captured (purchased) by the wealthy.
Another cause is the lack of judicial or other oversight of the prosecutor's office. Inasmuch as the courts have failed to stop prosecutorial misconduct for reasons set forth in such other article, it would seem that some type of extra-judicial oversight could be tried, such as
* complaints to the local grievance committee, with all complaints to be heard publicly, to punish and discourage prosecutorial misconduct;
* complaints to a national body (perhaps a panel of judges or magistrate judges) to hear and resolve complaints against any federal prosecutor, to be handled by persons outside of the District and State in which the accused prosecutor has his/her office;
* automatic assignment of proceedings alleging prosecutorial misconduct to a district court in another state, more than 100 miles away;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to a legislative oversight committee of Congress;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to the American Civil Liberties Union or similar organization.
* Legislation eliminating grand jury secrecy requirements to accomodate the "sunshine" requirements set forth above.
* Use of this website as a meeting point for persons complaining about or interest in prosecutorial misconduct and prosecutorial abuse.
* Use of mailing list on internet and responsible bulk e-mail to inform the citizenry about prosecutorial abuse as it occurs, and how it such abuse is being dealt with by established institutions, such as the local judiciary.
* Obtain an e-mail list of all members of the Senate and House of Representatives and e mail your complaint to them, for their legislative assistants to consider; try to generate a congressional hearing in the Judiciary Committee of both houses to investigate the ongoing prosecutorial abuses, with the idea of writing and enacting curative legislation; [a problem exists in that various ISP's may not permit your mail to go through because such mailing would be called "spamming" or "spam", thereby giving these corporate dominators of internet the self-proclaimed right to stop your messages asking for help.
* Complain to the Department of Justice that its employees are failing to abide by the Standards of Conduct in the Department of Justice or the Model Code of Professional Responsibility which governs all attorneys in the United States.
Copyright © 1998 by Carl E. Person
How to Reduce Prosecutorial Misconduct
Copyright © 1998 by Carl E. Person
How to Reduce Prosecutorial Misconduct
Prosecutorial Misconduct Can Be Reduced, by Recognizing and Dealing with the Causes of Prosecutorial Misconduct
The apparent reasons for prosecutorial misconduct and abuse are set forth in another website article, Article Explaining Causes of Prosecutorial Misconduct.
One cause seems to be the increased concentration of the economy, which reduces political power of most citizens, and permits the wealthy to control government institutions, including the prosecutor's office. Decreasing concentration of the economy no longer seems possible with existing political institutions, which for the most part have been captured (purchased) by the wealthy.
Another cause is the lack of judicial or other oversight of the prosecutor's office. Inasmuch as the courts have failed to stop prosecutorial misconduct for reasons set forth in such other article, it would seem that some type of extra-judicial oversight could be tried, such as
* complaints to the local grievance committee, with all complaints to be heard publicly, to punish and discourage prosecutorial misconduct;
* complaints to a national body (perhaps a panel of judges or magistrate judges) to hear and resolve complaints against any federal prosecutor, to be handled by persons outside of the District and State in which the accused prosecutor has his/her office;
* automatic assignment of proceedings alleging prosecutorial misconduct to a district court in another state, more than 100 miles away;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to a legislative oversight committee of Congress;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to the American Civil Liberties Union or similar organization.
* Legislation eliminating grand jury secrecy requirements to accomodate the "sunshine" requirements set forth above.
* Use of this website as a meeting point for persons complaining about or interest in prosecutorial misconduct and prosecutorial abuse.
* Use of mailing list on internet and responsible bulk e-mail to inform the citizenry about prosecutorial abuse as it occurs, and how it such abuse is being dealt with by established institutions, such as the local judiciary.
* Obtain an e-mail list of all members of the Senate and House of Representatives and e mail your complaint to them, for their legislative assistants to consider; try to generate a congressional hearing in the Judiciary Committee of both houses to investigate the ongoing prosecutorial abuses, with the idea of writing and enacting curative legislation; [a problem exists in that various ISP's may not permit your mail to go through because such mailing would be called "spamming" or "spam", thereby giving these corporate dominators of internet the self-proclaimed right to stop your messages asking for help.
* Complain to the Department of Justice that its employees are failing to abide by the Standards of Conduct in the Department of Justice or the Model Code of Professional Responsibility which governs all attorneys in the United States.
Copyright © 1998 by Carl E. Person
How to Reduce Prosecutorial Misconduct
Prosecutorial Misconduct Can Be Reduced, by Recognizing and Dealing with the Causes of Prosecutorial Misconduct
The apparent reasons for prosecutorial misconduct and abuse are set forth in another website article, Article Explaining Causes of Prosecutorial Misconduct.
One cause seems to be the increased concentration of the economy, which reduces political power of most citizens, and permits the wealthy to control government institutions, including the prosecutor's office. Decreasing concentration of the economy no longer seems possible with existing political institutions, which for the most part have been captured (purchased) by the wealthy.
Another cause is the lack of judicial or other oversight of the prosecutor's office. Inasmuch as the courts have failed to stop prosecutorial misconduct for reasons set forth in such other article, it would seem that some type of extra-judicial oversight could be tried, such as
* complaints to the local grievance committee, with all complaints to be heard publicly, to punish and discourage prosecutorial misconduct;
* complaints to a national body (perhaps a panel of judges or magistrate judges) to hear and resolve complaints against any federal prosecutor, to be handled by persons outside of the District and State in which the accused prosecutor has his/her office;
* automatic assignment of proceedings alleging prosecutorial misconduct to a district court in another state, more than 100 miles away;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to a legislative oversight committee of Congress;
* automatic copying of all papers and decisions in each proceeding alleging prosecutorial misconduct to the American Civil Liberties Union or similar organization.
* Legislation eliminating grand jury secrecy requirements to accomodate the "sunshine" requirements set forth above.
* Use of this website as a meeting point for persons complaining about or interest in prosecutorial misconduct and prosecutorial abuse.
* Use of mailing list on internet and responsible bulk e-mail to inform the citizenry about prosecutorial abuse as it occurs, and how it such abuse is being dealt with by established institutions, such as the local judiciary.
* Obtain an e-mail list of all members of the Senate and House of Representatives and e mail your complaint to them, for their legislative assistants to consider; try to generate a congressional hearing in the Judiciary Committee of both houses to investigate the ongoing prosecutorial abuses, with the idea of writing and enacting curative legislation; [a problem exists in that various ISP's may not permit your mail to go through because such mailing would be called "spamming" or "spam", thereby giving these corporate dominators of internet the self-proclaimed right to stop your messages asking for help.
* Complain to the Department of Justice that its employees are failing to abide by the Standards of Conduct in the Department of Justice or the Model Code of Professional Responsibility which governs all attorneys in the United States.
Copyright © 1998 by Carl E. Person
Thursday, August 30, 2007
If This application is dismissed as an abuse of the writ~then why a " Do Not Publish"?
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is actually innocent of the capital murder for which he was convicted and sentenced to death.
Applicant was convicted of capital murder on October 17, 1995. We affirmed the conviction and sentence on direct appeal. Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). On October 9, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. While that application was pending in the convicting court he filed an untimely supplement on December 14, 1998. We denied relief on his initial application and dismissed the untimely supplement as an abuse of the writ. Ex parte Mosley WR-27,818-02 & 27,818-03 (Tex. Crim. App. June 30, 1999). On August 20, 2007, applicant filed a second subsequent application, we again dismissed as an abuse of the writ. Ex parte Mosley, WR-27,818-04 (Tex. Crim. App. August 21, 2007).
At trial, on appeal, in his initial application and in his subsequent application for writ of habeas corpus, applicant raised the issue of his actual innocence; the claim was rejected each time. Applicant again raises the same issue, that he did not shoot any of the four victims who died or the fifth victim who survived. We have reviewed this application and find that it does not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5(a). This application is dismissed as an abuse of the writ; the motion for stay of execution is denied.
IT IS SO ORDERED THIS THE 28TH DAY OF AUGUST, 2007.
Do Not Publish
Tuesday, July 31, 2007
"We do know that children of incarcerated parents are five times more likely to be incarcerated themselves than their peers.
Money Can Be Saved on Prisons Without Diminishing Public Safety, ACLU of Texas Tells Lawmakers (2/25/2003)
FOR IMMEDIATE RELEASE
AUSTIN, TX--In testimony today before the Texas House Corrections Committee, the American Civil Liberties Union of Texas said that the state's prisons have become too expensive because the system incarcerates too many non-violent offenders who should be home supporting their families.
"In recent years, Texas prison spending grew faster than spending on either healthcare or education," said Will Harrell, Executive Director of the ACLU of Texas.
"Today, one out of every 100 Texas adults is incarcerated in a state or local facility, and one in 20 is under some type of supervision of the criminal justice system," he added. "That's a higher ratio than any other state and most Third World countries, but it hasn't made us safer. Our crime rate has not declined as much as states that incarcerate significantly fewer people. We need to find a better way."
Harrell said that the revolving penitentiary door has been closed for violent criminals--and rightly so -- but now the pendulum has swung too far in the other direction.
Texas prisons are projected to overflow as early as next month. As lawmakers scramble to address this immediate crisis, few people are taking a step back to consider long-term solutions, the ACLU said.
In his testimony today, Harrell noted that Texas protects the public safety of its citizens when it incarcerates violent offenders, but with non-violent offenders, "we reach a point of diminishing returns when too many people are incarcerated; we continue to throw money at the situation by incarcerating the offender while no longer affecting public safety one way or the other."
Texas today faces its gravest budget crisis in decades, and some lawmakers are looking to Texas prisons for budget savings. If budget cuts must be made, 70 percent of Texans said in a recent poll that prisons should be cut before other priorities like healthcare, education and transportation.
"But clearly the cuts cannot come out of programs, like drug treatment and education, which actually help reduce crime over the long term," said Harrell. "Short-sighted approaches will quickly backfire."
Harrell said that few experts have examined the impact on families of incarcerating non-violent offenders. "We do know that children of incarcerated parents are five times more likely to be incarcerated themselves than their peers. Something must be done to break this cycle."
Many other states like Louisiana, Oklahoma, Kentucky, California, and Michigan recently reduced some drug-related and other non-violent prison sentences and saved money in their state budgets. Harrell said the budget crisis should compel legislators to look closely at how those other states went about saving money without jeopardizing public safety.
The ACLU believes that a considerable amount of money can be saved by reducing sentences for petty non-violent crimes. Texas should focus more on a fair and just system, alternatives to incarceration, and implementing family-focused probation requirements for non-violent offenders.
"When money is tight, we need to be not just tough, but tough and smart about how we deal with crime and punishment," said Harrell. "Texas cannot afford to pay for incarceration when there is no longer a corresponding improvement in public safety."
FOR IMMEDIATE RELEASE
AUSTIN, TX--In testimony today before the Texas House Corrections Committee, the American Civil Liberties Union of Texas said that the state's prisons have become too expensive because the system incarcerates too many non-violent offenders who should be home supporting their families.
"In recent years, Texas prison spending grew faster than spending on either healthcare or education," said Will Harrell, Executive Director of the ACLU of Texas.
"Today, one out of every 100 Texas adults is incarcerated in a state or local facility, and one in 20 is under some type of supervision of the criminal justice system," he added. "That's a higher ratio than any other state and most Third World countries, but it hasn't made us safer. Our crime rate has not declined as much as states that incarcerate significantly fewer people. We need to find a better way."
Harrell said that the revolving penitentiary door has been closed for violent criminals--and rightly so -- but now the pendulum has swung too far in the other direction.
Texas prisons are projected to overflow as early as next month. As lawmakers scramble to address this immediate crisis, few people are taking a step back to consider long-term solutions, the ACLU said.
In his testimony today, Harrell noted that Texas protects the public safety of its citizens when it incarcerates violent offenders, but with non-violent offenders, "we reach a point of diminishing returns when too many people are incarcerated; we continue to throw money at the situation by incarcerating the offender while no longer affecting public safety one way or the other."
Texas today faces its gravest budget crisis in decades, and some lawmakers are looking to Texas prisons for budget savings. If budget cuts must be made, 70 percent of Texans said in a recent poll that prisons should be cut before other priorities like healthcare, education and transportation.
"But clearly the cuts cannot come out of programs, like drug treatment and education, which actually help reduce crime over the long term," said Harrell. "Short-sighted approaches will quickly backfire."
Harrell said that few experts have examined the impact on families of incarcerating non-violent offenders. "We do know that children of incarcerated parents are five times more likely to be incarcerated themselves than their peers. Something must be done to break this cycle."
Many other states like Louisiana, Oklahoma, Kentucky, California, and Michigan recently reduced some drug-related and other non-violent prison sentences and saved money in their state budgets. Harrell said the budget crisis should compel legislators to look closely at how those other states went about saving money without jeopardizing public safety.
The ACLU believes that a considerable amount of money can be saved by reducing sentences for petty non-violent crimes. Texas should focus more on a fair and just system, alternatives to incarceration, and implementing family-focused probation requirements for non-violent offenders.
"When money is tight, we need to be not just tough, but tough and smart about how we deal with crime and punishment," said Harrell. "Texas cannot afford to pay for incarceration when there is no longer a corresponding improvement in public safety."
Sunday, July 29, 2007
Public Policy run by WIA funding ~TYC contractors housing inmates have lost contracts,No changed their name......
TYC contractors housing inmates have lost contracts, closed doors elsewhere
12:44 AM CDT on Sunday, July 29, 2007
By HOLLY BECKA and JENNIFER LaFLEUR / The Dallas Morning News
hbecka@dallasnews.com; jlafleur@dallasnews.com
Robert Schulze was scared. He threatened to harm himself unless he was moved to another youth prison location. He lost 23 pounds in two months.
[Click image for a larger version] LARA SOLT / DMN
LARA SOLT / DMN
Joanna Garza, 15, plays with her baby Arionna at WINGS for Life, a TYC mother-baby program run my a nonprofit that has faced multiple lawsuits nationwide.
None of that raised concerns at the Coke County Juvenile Justice Center, a sprawling private youth prison in West Texas run by the GEO Group Inc. Nurses there never gave Robert his prescribed antidepressants, and prison officials never put the 19-year-old inmate on suicide watch.
Ten days later, he hanged himself from the top bunk of his solitary cell.
Texas Youth Commission investigators presented a grim report on the prison's failings to Gov. Rick Perry and other state officials in February. They could have discovered even more disturbing details had they looked beyond Texas' borders.
A three-month Dallas Morning News investigation found that private contractors housing juvenile inmates in Texas repeatedly have lost contracts or shuttered operations in other states after investigators uncovered mismanagement, neglect and physical and sexual abuse.
In Colorado, a suicide finally prompted state officials to close a private youth prison that investigators said was plagued by violence and sexual abuse. In Arkansas, former employees of a private juvenile facility said inmates were shackled and left naked on the ground in sleeping bags. And in Michigan, a private contractor was sued for allegedly allowing mentally ill inmates to languish in solitary confinement.
Also Online
Texas' youth jail operators have troubled histories
GEO Group's facilities were closed in Louisiana, Michigan
Nonprofit is no stranger to scrutiny
Firm's leaders linked to problems
Resources:
Read the state auditor general's March 2007 report on TYC: Overall conclusion | Full report (.pdf)
GEO Group Inc.'s answers to The News' questions (.pdf)
Interactive graphic: Mistreatments at TYC contract facilities
Interactive graphic: Texas private contracts around the nation
Archive: Complete coverage of the Texas Youth Commission scandal
Last year, TYC spent nearly $17 million of its $249 million budget to do business with these and other private contractors. The agency houses about 450 young inmates with 13 private operators.
Legislative reforms passed in the wake of the TYC sex abuse scandal largely overlooked private contractors and focused instead on agency-run prisons.
"They are a much under-examined problem in the TYC system," said Scott Medlock, a prisoners' rights attorney for the Texas Civil Rights Project, which has filed a class-action lawsuit against TYC alleging widespread inmate abuse.
The News focused its investigation on three private contractors with the largest number of TYC inmates and high numbers of complaints – GEO Group, Cornerstone Programs Corp. and Associated Marine Institutes.
Those contractors have been dogged by problems in Texas strikingly similar to what led officials in other states to take action. Such problems include difficulties in attracting qualified employees, high turnover rates and inadequate care for inmates – sometimes with tragic consequences.
States that hire contractors with poor performance records "obviously have a very low regard for our children," said Isabelle Zehnder, director of the Coalition Against Institutionalized Child Abuse, a child advocacy organization in Washington state. "They're letting money or circumstances stand above children."
[Click image for a larger version] LARA SOLT / DMN
LARA SOLT / DMN
An inmate folds his clothes in his cell at Garza County Regional Juvenile Center in West Texas. The facility is operated by Cornerstone Programs Corp., which closed a Montana facility in 2006 after violations including neglect and failure to report child abuse were reported.
Many states use private companies to run adult and juvenile prisons. Contractors argue they are more innovative and can do the job cheaper. Texas' three largest private contractors acknowledge having some problems in the past, but insist they run good programs that help juvenile inmates. "No correctional facility, public or private, is immune to incidents that are inherent in the management of offender populations," said GEO spokesman Pablo Paez.
But Michele Deitch, an expert on prison privatization at the University of Texas at Austin, said research showed that privatization did not save money and that "private facilities tend to have many more problems in performance, such as higher levels of assaults, escapes, idleness."
TYC officials said they were reviewing the agency's policies on contractors but could not comment about changes under consideration. However, just days after detailed questioning by The News, TYC canceled bid requests for new contract facilities. Bidders included contractors currently operating facilities in Texas that had a history of problems in other states.
The vetting process
TYC first turned to contractors in 1974 to relieve overcrowding. Contract care facilities vary from group homes to large prisons, and over the years contractors have come to provide specialized services not available at TYC prisons, such as care for pregnant inmates.
TYC's executive director makes the final decision to hire a private contractor after a five-phase review process that includes checks on the contractor's ability to provide adequate medical care and educational and behavioral treatment.
Companies with contracts terminated in the last year "for deficiencies in performance" anywhere in the country are ineligible to bid. And, under a new policy enacted in March as the TYC sex abuse scandal unfolded, the agency reserved the right to declare ineligible bidders with canceled contracts in the last three years.
"We ask for contracts [canceled] within 36 months, because this provides us with additional information that might be important – [such as] funding, or lack of funding," said Mark Higdon, TYC's business manager for contract programs. "It might not be performance. It might be something else, and we can look at that also."
While a contract cancellation would clearly be a red flag for TYC, there are many loopholes through which worrisome contractors can pass.
Arkansas officials, for example, let an agreement with Associated Marine Institutes expire after an audit found the contractor had mismanaged its billing and failed to provide proper services to young inmates. Elsewhere, companies have negotiated deals allowing them to withdraw from their contracts, or simply shut down after states have removed youth from their facilities.
Neither of these would constitute a terminated contract as defined by Texas.
Critics say that TYC requires private contractors to provide less background information when bidding than it should. For example, TYC does not request major incident reports or disclosure of lawsuits against contractors, nor does it do any independent research.
In Florida, by contrast, companies must list and explain any "correctional facility disturbances" – major incidents, such as escapes or deaths – in any of the company's prisons. Such disturbances may be the result of inadequate staffing, poor training or other factors and raise warnings about a company's practices.
TYC should require contractors to provide all incident reports, said Ms. Deitch, a lawyer with 20 years' experience in criminal justice policy issues.
"It is absolutely important that the contracting agency has this kind of background info," she said. "If problems occur, there can be liability concerns for the state agency, and the costs of dealing with the problems can far exceed any savings from going with a low-cost contractor."
Elizabeth Lee, the new acting coordinator for TYC contract care, acknowledged the agency has no "established process for collecting information" on how its contractors performed in other states. The important thing to consider, she said, is what they're doing in Texas "and what we're doing to monitor the care of our kids."
Correcting contractors
TYC regularly reviews contract facilities. It checks program areas, such as staffing and security, at least once a year. It also uses statistical information, such as rates of confirmed mistreatment and the number of escapes, to evaluate operators. TYC quality assurance monitors also make at least two unannounced visits per year.
If a facility has significant problems, it is put on a corrective action plan, which outlines improvements and deadlines for them.
The Coke County youth prison, for example, was placed on a corrective action plan in February after Robert Schulze's suicide. The plan required Coke to improve staffing and procedures in solitary confinement. Records show that Coke was also placed on a corrective action plan in July 2006 for deficiencies in case management, which includes inmate monitoring and record keeping.
Earlier this month, TYC monitors visited WINGS for Life in Marion, just outside San Antonio, which houses female inmates and their babies, to follow up on a corrective action plan necessitated by deficiencies in staff training and documentation.
"If a facility fails any critical measure, we have to come back and check it," said Jim Humphrey, the TYC quality assurance supervisor for WINGS.
TYC has the authority to fine contractors for problems, but it has never done so in 33 years of outsourcing, officials said.
"If it comes to that, we would just stop the contract," said Paula Morelock, who recently retired after 17 years as TYC's contract care coordinator.
But it rarely does that.
The News could find only a few instances of TYC not renewing contracts because of poor performance. TYC is required to retain contractor records for only a few years, so a full review of the program was not possible.
In 2001, TYC terminated its contract with FIRST Program of Texas in Longview after repeated problems. One young woman said that when she was at FIRST, it had chronic staff shortages.
"A lot of stuff took place that shouldn't have," said Michelle, a 22-year-old who asked that only her first name be used. "There were lots of problems ... like staff having sex with the youth there and improper restraints and lack of supervision."
In 2004, TYC removed its youth from the Hemphill County Juvenile Facility, then run by Correctional Services Corp., a former state contractor, because of "grave concerns for the safety of youth."
The move followed a December 2003 complaint signed by about 30 inmates. Still, an agency review conducted shortly after the letter was sent gave the facility "above average" scores on all performance measures.
The facility was later placed on a corrective action plan. A February 2004 update from TYC staff to Ms. Morelock said: "Although they have not completed all items, the team does believe that youth are safe and that the program is stable."
But staffing shortages followed, and in June 2004, TYC removed its youth from the facility.
"We feel like we do a lot of good monitoring and do our very best to ensure that the youth receive quality services," Ms. Morelock said.
When contracts expire, TYC determines whether the facility met the terms of its agreement. The contractor completes a renewal packet, and then youth commission officials visit the facility to determine whether to extend the contract for another two years.
More often than not, Ms. Morelock said, contracts are renewed.
Critics say that TYC needs to change its policy and open the process to outside bidders each time a contract comes up for renewal.
A question of oversight
TYC already has come under fire for lax employment guidelines that allowed contractors to hire convicted felons or even sex offenders. A Texas state auditor report in March urged TYC to ban contractors from hiring employees with convictions and to require background checks of applicants.
Even with background checks, some workers with criminal records have slipped through.
A registered sex offender employed by the GEO-run Coke County Juvenile Justice Center was fired in March. Ms. Morelock said the facility told TYC that it ran a background check on the worker, but his criminal records did not turn up. GEO said the correctional officer's prior record was not uncovered because juvenile records in Texas are sealed. [See dallasnews.com for further GEO comment.]
The Texas Juvenile Probation Commission, which licenses county facilities, found the Garza County Regional Juvenile Center in Post out of compliance last year because it failed to do criminal background checks on employees before they were hired.
In a unique arrangement, TYC contracts with the county, which in turn hired a private operator, Colorado-based Cornerstone Programs, to run the Garza facility.
TYC relied on the county to vet the contractor's background, Ms. Morelock said. A Garza County official said he did not know what, if any, backgrounding of Cornerstone had been done.
It's impossible to know whether other employees of private contract facilities have criminal records because, unlike workers at state-run facilities, their names are not public information.
"The fact that [these] facilities are private simply adds one more layer of opaqueness to the process," said Ms. Deitch, the UT adjunct professor.
A few of the TYC legislative reforms will carry over to private operators. Their guards' training hours must match that of TYC employees, their younger inmates must be separated from older ones, and contractors must now conduct fingerprint background checks on all employees and volunteers in contact with youth.
"Some of the contractors were already doing that [fingerprinting], but just as a safeguard we're putting it in the contract that they all have to do it now," said the TYC's Ms. Lee.
TYC officials say the most valuable part of the agency's monitoring is staff visits to facilities.
"They're looking at grievances, they're talking to kids, they're talking to staff and they're reviewing incident reports," Ms. Lee said.
In general, though, TYC relies heavily on its contractors to police themselves.
Contractors are required to forward inmate abuse allegations, although agency monitors have raised concerns that not all make it to TYC.
Contractors also must report serious incidents to local law enforcement, but TYC reviews found facilities that failed to do so.
Critics of privatized juvenile care think more state oversight is necessary.
"Child welfare and juvenile justice systems have both a legal and moral obligation to protect kids from harm, which means they have a responsibility to exercise due diligence when it comes to placing youths in psychologist frequently hired by the Illinois Department of Children and Family Services to review juvenile care.
"Whether we look at this situation in terms of public policy or simple morality, the question we have to ask is whether our society ought to be in the business of funding gulags for children."
12:44 AM CDT on Sunday, July 29, 2007
By HOLLY BECKA and JENNIFER LaFLEUR / The Dallas Morning News
hbecka@dallasnews.com; jlafleur@dallasnews.com
Robert Schulze was scared. He threatened to harm himself unless he was moved to another youth prison location. He lost 23 pounds in two months.
[Click image for a larger version] LARA SOLT / DMN
LARA SOLT / DMN
Joanna Garza, 15, plays with her baby Arionna at WINGS for Life, a TYC mother-baby program run my a nonprofit that has faced multiple lawsuits nationwide.
None of that raised concerns at the Coke County Juvenile Justice Center, a sprawling private youth prison in West Texas run by the GEO Group Inc. Nurses there never gave Robert his prescribed antidepressants, and prison officials never put the 19-year-old inmate on suicide watch.
Ten days later, he hanged himself from the top bunk of his solitary cell.
Texas Youth Commission investigators presented a grim report on the prison's failings to Gov. Rick Perry and other state officials in February. They could have discovered even more disturbing details had they looked beyond Texas' borders.
A three-month Dallas Morning News investigation found that private contractors housing juvenile inmates in Texas repeatedly have lost contracts or shuttered operations in other states after investigators uncovered mismanagement, neglect and physical and sexual abuse.
In Colorado, a suicide finally prompted state officials to close a private youth prison that investigators said was plagued by violence and sexual abuse. In Arkansas, former employees of a private juvenile facility said inmates were shackled and left naked on the ground in sleeping bags. And in Michigan, a private contractor was sued for allegedly allowing mentally ill inmates to languish in solitary confinement.
Also Online
Texas' youth jail operators have troubled histories
GEO Group's facilities were closed in Louisiana, Michigan
Nonprofit is no stranger to scrutiny
Firm's leaders linked to problems
Resources:
Read the state auditor general's March 2007 report on TYC: Overall conclusion | Full report (.pdf)
GEO Group Inc.'s answers to The News' questions (.pdf)
Interactive graphic: Mistreatments at TYC contract facilities
Interactive graphic: Texas private contracts around the nation
Archive: Complete coverage of the Texas Youth Commission scandal
Last year, TYC spent nearly $17 million of its $249 million budget to do business with these and other private contractors. The agency houses about 450 young inmates with 13 private operators.
Legislative reforms passed in the wake of the TYC sex abuse scandal largely overlooked private contractors and focused instead on agency-run prisons.
"They are a much under-examined problem in the TYC system," said Scott Medlock, a prisoners' rights attorney for the Texas Civil Rights Project, which has filed a class-action lawsuit against TYC alleging widespread inmate abuse.
The News focused its investigation on three private contractors with the largest number of TYC inmates and high numbers of complaints – GEO Group, Cornerstone Programs Corp. and Associated Marine Institutes.
Those contractors have been dogged by problems in Texas strikingly similar to what led officials in other states to take action. Such problems include difficulties in attracting qualified employees, high turnover rates and inadequate care for inmates – sometimes with tragic consequences.
States that hire contractors with poor performance records "obviously have a very low regard for our children," said Isabelle Zehnder, director of the Coalition Against Institutionalized Child Abuse, a child advocacy organization in Washington state. "They're letting money or circumstances stand above children."
[Click image for a larger version] LARA SOLT / DMN
LARA SOLT / DMN
An inmate folds his clothes in his cell at Garza County Regional Juvenile Center in West Texas. The facility is operated by Cornerstone Programs Corp., which closed a Montana facility in 2006 after violations including neglect and failure to report child abuse were reported.
Many states use private companies to run adult and juvenile prisons. Contractors argue they are more innovative and can do the job cheaper. Texas' three largest private contractors acknowledge having some problems in the past, but insist they run good programs that help juvenile inmates. "No correctional facility, public or private, is immune to incidents that are inherent in the management of offender populations," said GEO spokesman Pablo Paez.
But Michele Deitch, an expert on prison privatization at the University of Texas at Austin, said research showed that privatization did not save money and that "private facilities tend to have many more problems in performance, such as higher levels of assaults, escapes, idleness."
TYC officials said they were reviewing the agency's policies on contractors but could not comment about changes under consideration. However, just days after detailed questioning by The News, TYC canceled bid requests for new contract facilities. Bidders included contractors currently operating facilities in Texas that had a history of problems in other states.
The vetting process
TYC first turned to contractors in 1974 to relieve overcrowding. Contract care facilities vary from group homes to large prisons, and over the years contractors have come to provide specialized services not available at TYC prisons, such as care for pregnant inmates.
TYC's executive director makes the final decision to hire a private contractor after a five-phase review process that includes checks on the contractor's ability to provide adequate medical care and educational and behavioral treatment.
Companies with contracts terminated in the last year "for deficiencies in performance" anywhere in the country are ineligible to bid. And, under a new policy enacted in March as the TYC sex abuse scandal unfolded, the agency reserved the right to declare ineligible bidders with canceled contracts in the last three years.
"We ask for contracts [canceled] within 36 months, because this provides us with additional information that might be important – [such as] funding, or lack of funding," said Mark Higdon, TYC's business manager for contract programs. "It might not be performance. It might be something else, and we can look at that also."
While a contract cancellation would clearly be a red flag for TYC, there are many loopholes through which worrisome contractors can pass.
Arkansas officials, for example, let an agreement with Associated Marine Institutes expire after an audit found the contractor had mismanaged its billing and failed to provide proper services to young inmates. Elsewhere, companies have negotiated deals allowing them to withdraw from their contracts, or simply shut down after states have removed youth from their facilities.
Neither of these would constitute a terminated contract as defined by Texas.
Critics say that TYC requires private contractors to provide less background information when bidding than it should. For example, TYC does not request major incident reports or disclosure of lawsuits against contractors, nor does it do any independent research.
In Florida, by contrast, companies must list and explain any "correctional facility disturbances" – major incidents, such as escapes or deaths – in any of the company's prisons. Such disturbances may be the result of inadequate staffing, poor training or other factors and raise warnings about a company's practices.
TYC should require contractors to provide all incident reports, said Ms. Deitch, a lawyer with 20 years' experience in criminal justice policy issues.
"It is absolutely important that the contracting agency has this kind of background info," she said. "If problems occur, there can be liability concerns for the state agency, and the costs of dealing with the problems can far exceed any savings from going with a low-cost contractor."
Elizabeth Lee, the new acting coordinator for TYC contract care, acknowledged the agency has no "established process for collecting information" on how its contractors performed in other states. The important thing to consider, she said, is what they're doing in Texas "and what we're doing to monitor the care of our kids."
Correcting contractors
TYC regularly reviews contract facilities. It checks program areas, such as staffing and security, at least once a year. It also uses statistical information, such as rates of confirmed mistreatment and the number of escapes, to evaluate operators. TYC quality assurance monitors also make at least two unannounced visits per year.
If a facility has significant problems, it is put on a corrective action plan, which outlines improvements and deadlines for them.
The Coke County youth prison, for example, was placed on a corrective action plan in February after Robert Schulze's suicide. The plan required Coke to improve staffing and procedures in solitary confinement. Records show that Coke was also placed on a corrective action plan in July 2006 for deficiencies in case management, which includes inmate monitoring and record keeping.
Earlier this month, TYC monitors visited WINGS for Life in Marion, just outside San Antonio, which houses female inmates and their babies, to follow up on a corrective action plan necessitated by deficiencies in staff training and documentation.
"If a facility fails any critical measure, we have to come back and check it," said Jim Humphrey, the TYC quality assurance supervisor for WINGS.
TYC has the authority to fine contractors for problems, but it has never done so in 33 years of outsourcing, officials said.
"If it comes to that, we would just stop the contract," said Paula Morelock, who recently retired after 17 years as TYC's contract care coordinator.
But it rarely does that.
The News could find only a few instances of TYC not renewing contracts because of poor performance. TYC is required to retain contractor records for only a few years, so a full review of the program was not possible.
In 2001, TYC terminated its contract with FIRST Program of Texas in Longview after repeated problems. One young woman said that when she was at FIRST, it had chronic staff shortages.
"A lot of stuff took place that shouldn't have," said Michelle, a 22-year-old who asked that only her first name be used. "There were lots of problems ... like staff having sex with the youth there and improper restraints and lack of supervision."
In 2004, TYC removed its youth from the Hemphill County Juvenile Facility, then run by Correctional Services Corp., a former state contractor, because of "grave concerns for the safety of youth."
The move followed a December 2003 complaint signed by about 30 inmates. Still, an agency review conducted shortly after the letter was sent gave the facility "above average" scores on all performance measures.
The facility was later placed on a corrective action plan. A February 2004 update from TYC staff to Ms. Morelock said: "Although they have not completed all items, the team does believe that youth are safe and that the program is stable."
But staffing shortages followed, and in June 2004, TYC removed its youth from the facility.
"We feel like we do a lot of good monitoring and do our very best to ensure that the youth receive quality services," Ms. Morelock said.
When contracts expire, TYC determines whether the facility met the terms of its agreement. The contractor completes a renewal packet, and then youth commission officials visit the facility to determine whether to extend the contract for another two years.
More often than not, Ms. Morelock said, contracts are renewed.
Critics say that TYC needs to change its policy and open the process to outside bidders each time a contract comes up for renewal.
A question of oversight
TYC already has come under fire for lax employment guidelines that allowed contractors to hire convicted felons or even sex offenders. A Texas state auditor report in March urged TYC to ban contractors from hiring employees with convictions and to require background checks of applicants.
Even with background checks, some workers with criminal records have slipped through.
A registered sex offender employed by the GEO-run Coke County Juvenile Justice Center was fired in March. Ms. Morelock said the facility told TYC that it ran a background check on the worker, but his criminal records did not turn up. GEO said the correctional officer's prior record was not uncovered because juvenile records in Texas are sealed. [See dallasnews.com for further GEO comment.]
The Texas Juvenile Probation Commission, which licenses county facilities, found the Garza County Regional Juvenile Center in Post out of compliance last year because it failed to do criminal background checks on employees before they were hired.
In a unique arrangement, TYC contracts with the county, which in turn hired a private operator, Colorado-based Cornerstone Programs, to run the Garza facility.
TYC relied on the county to vet the contractor's background, Ms. Morelock said. A Garza County official said he did not know what, if any, backgrounding of Cornerstone had been done.
It's impossible to know whether other employees of private contract facilities have criminal records because, unlike workers at state-run facilities, their names are not public information.
"The fact that [these] facilities are private simply adds one more layer of opaqueness to the process," said Ms. Deitch, the UT adjunct professor.
A few of the TYC legislative reforms will carry over to private operators. Their guards' training hours must match that of TYC employees, their younger inmates must be separated from older ones, and contractors must now conduct fingerprint background checks on all employees and volunteers in contact with youth.
"Some of the contractors were already doing that [fingerprinting], but just as a safeguard we're putting it in the contract that they all have to do it now," said the TYC's Ms. Lee.
TYC officials say the most valuable part of the agency's monitoring is staff visits to facilities.
"They're looking at grievances, they're talking to kids, they're talking to staff and they're reviewing incident reports," Ms. Lee said.
In general, though, TYC relies heavily on its contractors to police themselves.
Contractors are required to forward inmate abuse allegations, although agency monitors have raised concerns that not all make it to TYC.
Contractors also must report serious incidents to local law enforcement, but TYC reviews found facilities that failed to do so.
Critics of privatized juvenile care think more state oversight is necessary.
"Child welfare and juvenile justice systems have both a legal and moral obligation to protect kids from harm, which means they have a responsibility to exercise due diligence when it comes to placing youths in psychologist frequently hired by the Illinois Department of Children and Family Services to review juvenile care.
"Whether we look at this situation in terms of public policy or simple morality, the question we have to ask is whether our society ought to be in the business of funding gulags for children."
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