Roundup: 'Gagged, sealed, and delivered,' and other stories

Let me point out a few items that failed to make it into individual Grits posts but still merit readers' attention:

Prison homicides rise, rural units short-staffed
At the Austin Statesman Mike Ward reports that in-prison homicides at TDCJ spiked this year to 11, up from an average of just more than three per year for the past decade. Ward also gave this brief update on chronic understaffing at the agency: "At the end of October, seven prisons— mostly in West and South Texas — had staffing levels under 70 percent, a threshold when staffing can become an operations issue, according to an internal report reviewed by the American-Statesman. The lowest staffing was at the Smith Unit in Lamesa, in West Texas, where 48 percent of the guard jobs were vacant."

Three overbroad Texas penal statutes
Mark Bennett identifies three Texas statutes he says violate the First Amendment: Online impersonation, improper photography, and online solicitation of a minor. (See his additional discussion of that last one, and this item related to the online impersonation statute.) Concluded Bennett, "In order to uphold these three statutes, the U.S. Supreme Court would have to add at least two entirely new categories of unprotected speech to the four it has recognized in the past."

After 30 years, a request for a speedy trial
A man whose murder conviction was overturned in 1983 because of an improperly convened jury was never retried and now has sought habeas relief, which a federal judge seems inclined to grant. Reported AP, the "5th U.S. Circuit Court of Appeals ... described the state’s defense of Hartfield’s incarceration as 'disturbingly unprofessional' in its Wednesday decision," but asked the Texas Court of Criminal Appeals for clarification on its previous ruling in the case.

DNA backlogs delay justice
Travis County may launch its own DNA testing lab because of backlogs and delays at Department of Public Safety crime labs, reported KXAN last week. "In 2011, the DPS Lab completed testing on 1,332 DNA cases, which included examinations of 26,216 pieces of evidence." Grits has discussed before how Texas crime lab capacity has failed to grow rapidly enough to meet demand and questioning whether the Legislature will prioritize spending on forensics.
 
Bill would limit unreliable informant testimony in capital cases
Brandi Grissom at the Texas Tribune last week had a story about legislation filed by state Rep. Harold Dutton to limit snitch testimony in death penalty cases. "Under HB 189, prosecutors in death penalty cases would be unable to use testimony from informants or from alleged accomplices of the defendant if the evidence were obtained in exchange for immunity, leniency or any other special treatment. The measure would also make testimony from cellmates of the defendant inadmissible unless the conversation was recorded." The article mentioned a couple of Texas laws regulating snitching championed by state Sen. Juan "Chuy" Hinojosa (both of which your correspondent worked on in the past), noting that "Texas was one of first states to require the corroboration of jailhouse informant testimony and drug snitches." Said Alexandra Natapoff, a law professor at Loyola Law School Los Angeles, and author of the Snitching Blog, “Odd as it may sound, Texas is at the vanguard of snitch testimony.” Grits would argue, though, that Florida has enacted protections related to police use informants that Texas would be wise to emulate.

'Gagged, sealed and delivered'
Federal magistrate Judge Stephen Smith in Houston published an essay earlier this year critiquing the massive volume of electronic surveillance warrants on secret federal dockets. The abstract reads

Federal magistrate judges preside over the most secret docket in America. Exact figures are not known, but available data indicates that these judges issued over 30,000 electronic surveillance orders in 2006, more than the entire output of the FISA court over its entire history. These electronic surveillance orders, authorized by the Electronic Communications Privacy Act of 1986 (ECPA), grant law enforcement access to the electronic lives of our citizens -- who we call, where we go, when we text, what websites we visit, what emails we send. Unlike most court orders, electronic surveillance orders are permanently hidden from public view by various ECPA provisions, including sealed court files, gag orders, and delayed-notice. It's as though these orders were written in invisible ink -- legible to the phone companies and electronic service providers who execute them, yet imperceptible to targeted individuals, the general public, and even other arms of government, including Congress and appellate courts. This regime of secrecy has many unhealthy consequences: Congress lacks accurate empirical data to monitor the effectiveness of the existing statutory scheme and adapt it to new technologies; appellate courts are unable to give effective guidance to magistrate judges on how to interpret ECPA's complex provisions in light of changing technology; and citizens are not informed about the extent of government intrusion into their electronic lives. With Congress on the sidelines, appellate courts not engaged, and the public in the dark, the balance between surveillance and privacy has shifted dramatically towards law enforcement, almost by default. While it is certainly time to update the substantive provisions of ECPA, it is equally important to make structural changes in the law to eliminate unnecessary secrecy. Such reforms should include the elimination of automatic gagging and sealing orders, as well as the adoption of a publicly available warrant cover sheet to capture basic information about every electronic surveillance order.

Relatedly, see a recent Houston Chronicle story titled, "Email is not in the First Amendment."