Q. If you could improve on one area of law education, what would it be?
A. We are working on innocence. Each session, the Court of Criminal Appeals gets $20 million in legal education funding from the Legislature. This year we got the Legislature to set aside a different pot of money ... to provide education in the use of DNA, how to deal with recantations, eyewitnesses and prosecutorial misconduct. Texas is getting onboard with the new science and is way ahead of some states, but there is still a long way to go.
Q. Have innocence-related projects met with resistance?
A. It is not so much resistance as apprehension and fear. Some police departments might feel (if convicts are exonerated) the public will think they are doing crappy work. All segments of the system are afraid they will be blamed, but they are coming onboard.
With all respect to Judge Hervey, in practice "apprehension and fear" pretty much translate into "resistance." And let's face it, some police departments are "doing crappy work" or we wouldn's see so many innocent people who've been railroaded. Same goes for applellate judges.
We've recently seen a handful of cases where the Court of Criminal Appeals is inching away from the "Damn 'em all, hang 'em high" judicial philosophy that led Texas Monthly to call them "Texas' worst court" (an appellation, one should add, for which there is no small competition). But if the court's fundamental philosophy is shifting (and Hervey's naming "innocence" as a priority makes me slightly more hopeful in that regard), the pendelum swing has been slow in coming and waiting on it has cost both the CCA and the entire Texas justice system dearly in lost credibility. Restoring that will take more than a couple of good decisions and a few newspaper interviews.
Judge Hervey also predicted the rise of more public defender offices in Texas the coming decades, a trend I've written about frequently:
Q. How do you see the legal profession changing in the next 20 years?
A. About 65 percent of the trial dockets are criminal, and I don't see that going down. I think we will see more public defender officers.
Every new public defender office established in recent years in Texas has been created with startup capital from the Texas Task Force on Indigent Defense, a grant and technical assistance project established by the 2001 Fair Defense Act and chaired by CCA presiding Judge Sharon Keller. Earlier this year I called the expansion of public defender officers one of the "underreported success stories in Texas criminal justice politics." I'm glad to hear Judge Hervey say she expects that good work to continue.