01/30/08 - Patrick McCann

Patrick McCann, President of Harris County Criminal Lawyers Association on his recent Op-Ed in the Houston Chronicle regarding jailing of mentally ill, prosecution of minor drug offenses, crime lab fiasco, second chances for first time offenders and the death penalty.

Program: 
Cultural Baggage Radio Show
Date: 
Wednesday, January 30, 2008
Guest: 
Patrick McCann
Organization: 
Harris County Criminal Lawyers Association
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Cultural Baggage, Jan 30, 2008

(Strange Electronic Voice): This is your Drug Czar, John Walters. Do not listen to the Drug Truth Network. It’s evil. Pure evil.

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My name is Dean Becker. I don’t condone or encourage the use of any drugs, legal or illegal. I report the unvarnished truth about the phamaceutical, banking, prison, and judicial nightmare that feeds on eternal drug war.

Broadcasting from the gulag filling-station of Planet Earth. This is indeed Cultural Baggage. Today we take a look at the criminal justice system of the Drug Truth mothership city, Houston, Harris County. Joining us in the studio is the President of the Harris County Criminal Lawyers Association, Mr. Pat McCann.

Pat McCann: Hi. Thanks for having me on.

Dean Becker: Thank you, Sir. There was a great op-ed you had published in the Houston Chronicle about a week ago: Questions to ask the DA candidates. We have a fairly unique situation here in that our current DA is not going to run again for numerous reasons perhaps we’ll get in to. But your piece talked about several main points, the first was ‘will the district attorney’s office begin to work to find serious alternatives to help the mentally ill who wind up in district and county courts.’ And your continued thoughts-

Pat McCann: I appreciate your kind words and having me on here to discuss this. I was writing the piece to try and provoke some debate about the policies that have been coming out. In fairness to the DA’s office this is a question that goes across the board to all, both the law enforcement, the DAs, our end of it on the criminal defense side, and perhaps the County Attorney’s office and the county health system as well.

But what’s happened in the State, and particularly egregiously in Harris Country, is that the law enforcement system is now the mental health system. The Sheriff’s Department at any one time probably has 1,400 or so folks with a diagnosed mental illness, and that’s the one’s they catch in the 10,000 bed prison system, or the jail system, and that is, makes it, the Sheriff’s Department the largest de facto mental health facility in most States.

And that is a real problem when you’re using law enforcement to deal with mentally ill people and that was a call to sit there and try to find new ways to divert people with mental illness before they get into trouble, and if they do get picked up to screen them and divert them before they get stuck in a criminal prosecution if possible.

Dean Becker: Well, often times we have situations where people are caught up in an arrest, sometimes they feel they should swallow the drugs which they have on them or they have already gotten too high on alcohol and a certain mix of drugs and they wind up in a cell where they’re dismissed, their concerns are dismissed, and often they are physically ill from that intake of drugs, but this is not a normal mind set, usually people that are out there doing enormous amounts of these drugs and, I guess what I’m trying to say here is that the medical staff tends to ignore them until the last moment and then people are caught up in a desperate situation facing death from their exposure, or their lack of medical help. Your thoughts on that.

Pat McCann: I would respectfully disagree with you on this for this reason: I’ve spent the last couple of months, although I did speak out against the expansion of the jail facility and the bond, I have spent the last couple of months getting to know the Sheriff’s Department folks and the county mental health folks and to a man and a woman, I have to tell you, that I was very impressed with their dedication and their seriousness about trying to handle these folks differently.

And I’m, when we talk about someone who’s ODing on drugs, yes, there is often a crossover between folks who are self-medicating because of a mental illness on the street, in terms of whether there’s a mental illness underlying the drug issue, but to my experience most of the deputies and the mental health folks working in that system, although they’re overwhelmed with numbers, try very hard to give these folks the best care that they can.

The tough part has been, up to now, a lot of the system is not set up to identify these folks when they get taken in. In other words, to do a simple check to see if they have a MH/MRA history with a mental health and mental retardation authority, to simply ask them on a question form ‘have you ever been treated for mental illness?’, to have the officers seen observations say ‘you know, I think this person needs screening for mental health’, to take those things into account is what seems to be simple steps but they’re taking them now to try and screen those folks when they come in.

I’m very hopeful that’s going to result in a much better identification of mental health problems early in their incarceration and earlier in the criminal system.

Dean Becker: I appreciate that and your knowledge, your experience within this environment, I respect what you’re saying. Now, you had a second point in your op-ed, I’ll read it here, “will the District Attorney’s office continue to prosecute minor drug cases with such vehemence, clogging our dockets and wasting resources and jail space?” And before I let you answer that I want to play a track of an interview I did with our current District Attorney, Mr. Chuck Rosenthal.

Pat McCann: Sure.

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Dean Becker: This is from another Chronicle editorial: “Harris County data show that sixty-two percent of those convicted for less than one gram of drugs were black out of a local population that is only eighteen percent black.” Wouldn’t that tend to indicate some sort of racial bias?

Chuck Rosenthal: No, I think it indicates that the race of the people that are using crack cocaine more than anything else.
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Dean Becker: Your response to that?
Pat McCann: He’s right in the sense that if one were in a rural county and looking at meth convictions those folks would be overwhelmingly white. The use of crack cocaine, the smoked hard rock form of cocaine, is typically a drug of choice for folks who are poor and African-American.

So there is a sort of a demographic there that favors this drug, white folks tend to powder cocaine generally, although there’s crossover in all of this, and meth tends to be a white person’s problem. What the reality in Houston is, and in Harris Country, is that the folks who overwhelmingly indicted and prosecuted for this tend to be black so this policy of going after what we call ‘residue cases’, which are essentially crack pipe cases with some tiny, somehow noticeable amount in the pipe itself, which amounts to a possession of less than a gram, it falls overwhelmingly on the black population, and the poorer black population, and it doesn’t.

Prosecuting them does nothing to actually treat the drug addiction. Once they’re in the system they tend to sit on a bond, they tend to await a situation where they’ve either served enough time to get time served on a reduced charge or wait for a trial and they wind up clogging our court system and our jails with hundreds, if not thousands, of folks who are awaiting a trial on a very minor crime that doesn’t really address the end problem.

They don’t get diverted into drug treatment typically unless they plead guilty and a lot of them are given a choice between taking county-time of, under a section of the penal code called 1244A, which counts as a felony but is served as a misdemeanor time in Harris County jail, or seeking a lengthy probation with treatment and, frankly, by the time they get to that point they’ve probably already served enough time to get it done, so we just put them back out on the street after a 1244A sentence and we create a revolving door on this.

Dean Becker: Yes, a revolving door indeed. Now there are a couple of laws that have been passed within the State of Texas that would help diminish those jail house numbers. There was one, if I recall, I think it was 3 years ago past in respect to possession of under a gram would allow the District Attorney to no longer prosecute these people, that they would be, if I recall, in effect forced to treatment, but that doesn’t happen here in Harris County.

Pat McCann: You’re talking about less than a gram of marijuana, not less than a gram of cocaine if I remember that...

Dean Becker: I don’t have my stats with me, let’s talk about what I am sure of. Most recently the House Bill 2391 which would allow District Attorneys to choose not to arrest, not to incarcerate people for less than four ounces of marijuana or for most misdemeanor crimes and yet most District Attorneys, including our own Chuck Rosenthal, choose to continue arresting those people. Your thoughts?

Pat McCann: I wish they’d embrace this with greater warmth but in fairness to the DAs there are some cases where, for instance misdemeanor assaults come to mind, where you would not want to necessarily leave people who are in the midst of a fight in a situation where they’re still fighting because that can escalate, I certainly understand if they have certain crimes they want to exempt from that policy.

Possession of marijuana, for instance, does not seem to be one that would run a huge risk to the populace but, you know, that may be someone else’s view, but it would certainly alleviate overcrowding in our jails and thus overburdening the taxpayers for this type of stuff for the most part. Now, of course if someone’s driving and smoking (laughter) that may be, that may be one of those situations where they’re just going to have to spend the night. But that’s not every case.

Dean Becker: Well now, I recall the Sentencing Project compiled the numbers for the year 2007, drug arrests, and I’m sure in Houston, Harris County, the majority of them were for marijuana. The number was 17,841 and that’s a lot of people, that’s well more than the number that required us to send our prisoners to Louisiana, to the private prisons over there which, again, they’re very suspect.

Another point you brought up in you op-ed: “Will the new DA continue to support the serious and thorough review of the HPD Crime Lab fiasco?” And I got a chance to talk with him about that and we’ll see if we can play that track here in a minute, but you said in fairness to Chuck Rosenthal he’s tried his best to clean this ugly, and it keeps getting uglier, mess and it continues to get uglier even after this op-ed. Let’s talk about the recent developments in that crime lab.

Pat McCann: It just got uglier. The HPD DNA lab has been shut down yet again because the folks involved in it were found to be cheating on their own proficiency exams. The unfortunate part of that, and the most unfortunate part of that is that the person who was running that section, a PHD named Nelson, rather than be fired, it’s my understanding that she resigned in lieu of being fired for this new scandal and went to work for the DPS DNA lab which is, the irony of that is that as they’ve shut down HPD and what will happen there on a practical level is that DNA cases will be split up between probably the MEs, the county MEs lab, DPS regional labs and private contractors.

She will probably be reviewing some of the HPD cases that, had she stayed here she would be prohibited from reviewing because she would have been fired. This, what’s unfortunate about this is that despite the cries that they’re going to fix this, HPD has just not fixed it. They lack the will to fix this. They lack the ability to fix this and it’s time to simply scrap it and get it back into a regional crime lab and yes, there will be some delays in cases handled in the meantime, but you know something, there’s going to be delays now because they had to shut it because it’s not trustworthy.

And now, one of the people who’s made it not trustworthy is going to the DPS. So this is fundamentally broken laboratory system and it cannot be fixed by HPD, they do not have the will to do it. I respectfully disagree with anybody who sits there and says that they can fix this.

It’s time to scrap HPD’s lab and get it in the hands of a regional non-law enforcement aligned objective lab run by the State or by a consortium of counties.

Dean Becker: I agree with you, Sir. You know, to me it just seems outrageous that, again, the DPS has had its problems of its own. It’s been, had some labs shut down. There was a gentleman up in a Conroe lab, if I recall, who was indicted, and I think convicted, for some twenty-two kilos of cocaine that he had stolen from the DPS lab.

We see these television shows, Crime Scene Investigators, and they can track a rat’s footprints across a city to solve a crime, and yet these people are not that good, right?

Pat McCann: They’re the anti-CSI. Everybody in this bunch in Texas, at least in this area, is truly the exact opposite of what you see on those highly-fictionalized shows. I mean, if people knew how incompetent, how lazy, how useless these folks are it would be, frankly, astonishing.

And the fact is that of the folks in the lab at HPD, they kept half of them after this scandal. Now I’m going to grant you that there probably were some good apples in that bunch but, you know something, it’s clear that there couldn’t have been that many because they just had to fire 3 of them.

So it is truly a travesty and anyone who sits there and thinks that DNA is always right should really, really take a hard look at what has been done in Harris County via the HPD lab to innocent people, to people who have been probably convicted of crimes greater than they were supposed to be, and in terms of drug amounts, and it goes across the board...they had people ‘dry-labbing’, essentially creating false reports in the narcotics section, and when you mention DPS, the DPS regional labs are no better.

They shut their lab, one of their regional labs, in 2003, in fact I believe it’s the same lab that the DNA person, Ms. Nelson, is now going to. This is a constant travesty that should alarm everybody who’s got someone involved in the criminal justice system or any citizen who simply wants to actually trust what the evidence is in a case. And frankly, at this point, I don’t see how anyone in Houston could.

Dean Becker: Thank you. Once again you are listening to the Cultural Baggage Show on the Drug Truth Network and Pacifica Radio. We are talking to Mr. Pat McCann, he’s President of the Harris County Criminal Lawyers Association and I’m bringing this local-based show to my affiliates on the continent to talk about the reasons, or to recommend that you not do this yourselves. This is a fiasco. There is no doubt about it. We’re going to play that other track now, this is some more from our District Attorney talking about his control of things.

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Dean Becker: I called Judge Gray, Judge James P. Gray, he’s the author of a book “Why the Drug War has Failed and What We Can Do About It: A Judicial Indictment of the War on Drugs” and he has quotes from federal, state, and municipal judges in there in that regard. His question for you, Sir, is first off to ask ‘are we in better shape in regards to the Drug War than we were 5 years ago?’

Chuck Rosenthal: Again, I don’t know the answer to that. I don’t worry about statistics, I don’t keep statistics on how much we’re doing or not doing. At one time I was the drug prosecutor for Harris County and I can recall back in those days, which is going to be back in the late 70’s-early 80’s we’d make a significant bust of, particularly back then it was methamphetamine, and you would see market price no really change very much according to what officers were paying for it on the streets, so I don’t know if we’ve made significant inroads in that regard or not.

Dean Becker: And his follow-up question was ‘do you think we have any legitimate expectations that will make any difference in the next 5 years?’

Chuck Rosenthal: Well, yeah, again that’s a difficult question and one I don’t know that I’m qualified to answer.
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Dean Becker: Once again, that was Chuck Rosenthal, the current DA, and another point on your op-ed: “When will we see the return of genuine second chances for first-time offenders?” Please elaborate on that.

Pat McCann: On my part on that, let me hit what Chuck was saying. In fairness, I’m trying to be fair on this, in terms of, Chuck is one DA, admittedly a DA that’s beset by some issues right now, but he is one DA among 254 in Texas. He is one DA among thousands across the country. Houston as a microcosm of the larger Drug War I think is a failure in many ways.

And some of that is an emphasis of enforcement over treatment and some of it is other things we could talk about, but that said I think in terms of the genuine second chances for first-time offenders, this I’ll simply address directly to the current Administration over there...a genuine second chance for folks who have minor crimes, whether they’re drug related or not, and often they are, a youngster, say eighteen or nineteen who is not a juvenile, and he was picked up perhaps as a high school senior or a college freshman or in between, with drugs is not given, typically, in Harris County the opportunity to clear their record via a form of community supervision called pre-trial diversion.

They are instead shunted towards a straight probation or a form called deferred adjudication which allow one, after the term is completed, to apply for sealing of their record, but it’s still available to law enforcement and for other things as well. And some crimes simply can’t be sealed under deferred adjudication or at least not for some time.

Pre-trial diversion is a genuine second chance because if you complete a one or two year term of community supervision you’re still doing the same things, you’re still showing up for educational classes, completing educational requirements, doing community service and staying out of trouble-you are able, the DA actually dismisses the case, and you are able to apply for an expungement when that term is done.

Expungement actually removes it from your record and that is a huge difference to employers, to colleges, to the military, to anyone. That has essentially vanished in Harris County. And it is fairly, and in fairness, it is vanished in several surrounding counties including Fort Bend and a few others.

It is a genuine second chance and given that it is clear that our DA is quite human, based upon some emails that have come out here, I would hope that whoever is going to replace him would take a new look at that policy and start looking at it in terms of genuine granting of second chances for folks who make mistakes because the attitude up until now has been, you know, no one’s worthy of it and frankly it hasn’t been given. And I think that’s a mistake for both society and for this office.

Dean Becker: Alright. The final point within your op-ed is ‘how often and when should the death penalty be sought and at what cost?’ and in the, our county pretty much ties the rest of the Nation in the amount of executions brought forward. How do we change that mindset? The hang ‘em high mentality.

Pat McCann: Well, I should disclose my own bias on this to your listeners before I start. I am someone who does death penalty work here on the defense side and although I am probably one of the few folks who does not oppose the death penalty in all circumstances who does this work, I certainly, having seen the sausage made, would not miss it if it was gone tomorrow.

That said, this is just a bad use of our money, as taxpayers, and here’s why: to try, convict and appeal a death sentence and to house a death row inmate in Texas costs a huge amount of money, an amount of money that, frankly, the DA’s offices in smaller counties are not willing to spend because it bankrupts them.

To do this properly requires two dedicated prosecutors, two dedicated defense attorneys, an appellate attorney, a post-conviction attorney, various experts and investigators, enormous amounts of State resources and experts to come in, I mean you could easily be looking at, and then you throw in the factor that if you keep them in a special place, up on death row it costs extra money to guard them, and despite that they still lose people like they did the other day, Jesus Flores, committed suicide up on death row yesterday.

You’re looking at somewhere between a half a million to a million dollars to try, convict and execute someone. In this county, the hospital district is crying poor every time the budget cycle comes up so I’m simply asking the taxpayers, would you rather spend, say, a half a million dollars trying to execute one guy when you can put him away for life, or would you rather spend that half a million dollars on an inoculation program for school kids?

These are choices that taxpayers ought to be given the right to make and it shouldn’t be discretionary with the DA’s office, if that makes sense.

Dean Becker: Oh it does, it does. And our infrastructure nationwide, State and regional, all seems to be cratering. We need to repair roads and bridges and not build more prisons. I want to thank you for this great op-ed. I want to kind of list a couple of points that you, gosh, 1,400 words is not enough space to talk about everything, but a couple things that as a former cop, member of Law Enforcement Against Prohibition, I just want to bring forward and we’ll close out with this discussion.

Pat McCann: Sure.

Dean Becker: We have cops being indicted for murder, continuing stories of cops killing via side arms, tasers, and beatings, hundreds of county prisoners sleeping on the floor next to toilets, hundreds more being shipped out of State to suspect private prisons, juvenile justice systems still struggling and still fumbling trying to recover from a near total collapse, deficient and non-existent medical care for some prisoners, at least at the State level, the DA under investigation, DA’s assistants making mistakes that undo the work of grand juries and the indictment of a Supreme Court Justice, reports of prosecutors enjoying bigotry, sexism, political activism and more while on the job...this city, this county of Houston, Harris County, is seen as being out of control by millions of people around the world who see our criminal justice system as akin to that of Judge Roy Bean. This is my opinion but I believe it is the mindset of Drug War, of loosing the dogs of war, to do whatever they can get away with, to stop the flow of drugs that has engendered this plethora of unintended consequences, of madhouse pell-mell blowback, of billions of dollars squandered, misspent, on this eternal drug war that allow this horrendous, unnecessary collateral damage. Your response, Mr. McMann?

Pat McCann: That’s a pretty broad range of topics you’re hitting me with but let me see if I can do this. I’ve been practicing here for close to 14 years. In that time I have seen really what I would consider no progress overall, in fact retrograde progress, in terms of how we deal with drug offenders and mentally ill.

I have seen, although a slowing of the trials that bring the death penalty here, I have not seen a slowing in the executions. I have seen a large amount of money spent on things that, frankly, could be better spent for the taxpayer’s money. And when you look at all that stuff and you look at the fact that our HPD lab is completely broken, the DA’s office, and this is despite the fact that there are many hard-working, good DAs in that office, our DA’s office is in disarray.

There are three Supreme Court Justices right now being looked at for ethics violations and one just got indicted and then dismissed for a charge, I think many people would have to be looking at this system in Harris County and wonder if it’s fundamentally broken in some ways and what that means is that it’s time to sit there and make significant changes. And perhaps this DA’s election will give folks a chance to voice on what they want those changes to be.

Dean Becker: I have had discussions with a couple of DA candidates, I mean judge candidates and a couple of State rep candidates and they’re looking at Law Enforcement Against Prohibition because we want to destroy the cartels, quit funding the terrorists, eliminate the gangs, take away our children’s easy access to drugs, it’s a win-win-win situation for any candidate out there listening. Get in touch with me, dean@drugtruth.net.

There is nobody who can fight for continued drug war. It is an absolute fiasco, counter-productive and not doing a dang thing for our nation.

Once again, we’ve been speaking with Mr. Pat McCann, President of the Harris County Criminal Lawyers Association. Pat, I want to thank you for coming in here and facing down these lions, of, for and on behalf of the citizens of Harris County.

Pat McCann: I don’t know about lions but I appreciate you having me on and giving me a chance to speak. Thank you very much.

Dean Becker: Thank you.

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Name that drug by it’s side-effects:

(answer) Enzyte
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(Extract from the movie Syriana): We have laws against it precisely so we can get away with it. Corruption is our protection. Corruption keeps us safe and warm. Corruption is why you and I are prancing around in here instead of fighting over scraps of meat out in the street. Corruption is why we win...

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Dean Becker: OK. My friends, look, here in Harris Country and across the Nation and on up into Canada, I understand Canada’s now is thinking about embracing some of the draconian drug laws of the U.S., you know to do mandatory minimums, longer sentences, you grow pot-you go to jail, you know, come to Harris County. Come down here and talk to me. Talk to Pat McCann. Talk with our District Attorney. See how it’s working out, you know, see how it’s, what a success it is. We have to take time to look at what’s going on before our very eyes and take the necessary steps to end this madness. There is a better way. We don’t have to have our jails filled with millions of people. We need to take time to embrace the truth. Look at what’s going on before us.

As always, I remind you that because of drug prohibition you don’t know what’s in that bag so I urge you to please be careful.

To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the unvarnished truth. This show produced at the Pacifica studios of KPFT, Houston.

Tap dancing on the edge on an abyss.

Transcript provided by Gee-Whiz Transcripts. Email: glenncg@zoominternet.net