Monday, November 14, 2011

McLennan DA wants law changed to restrict postconviction DNA testing

Readers may recall rookie McLennan County DA Abel Reyna declaring last month to the Waco Tribune Herald that he opposed post-conviction DNA testing because it undermines jury decisions. Rather than back off that absurd statement, Reyna is now doubling down. He seems as oblivious to the history of Texas' DNA testing statute as he has been to its actual language (he earlier opposed testing for the sole-surviving Lake Waco murder defendant but now apparently realizes he had no valid legal grounds to do so under the new statute). At least you can tell by the latest TV news story that Reyna has finally read the law, though his understanding remains dubious, at best. Reported the local ABC affiliate KVVX:
District Attorney Abel Reyna says a change in law allows convicted criminals to file unnecessary requests for DNA testing to reverse their conviction.
"Technically you have any and every defendant who ever pled to a crime or was convicted of a crime potentially could file a post-conviction DNA motion," Reyna says.

The change in Chapter 64 of the Code of Criminal Procedure could mean more money spent carrying out the requests, which are unlimited, but cost isn't the only problem worrying Reyna.

"What concerns me most as District Attorney is that there is absolutely nothing in Chapter 64 with regard to victims and their families," Reyna says.

A new motion in a case closed decades ago could mean new heartache for the family of a victim.

"A defendant could use Chapter 64 to continue to torment a victim's family," Reyna says.

The root of the problem, Reyna says, is that nothing is at stake for the prisoner who files the request. "They can just file it, and it comes back, and it's them and they can just say, 'Ah, darn,' and continue serving their sentence," he says. ...
Reyna supports post-conviction DNA testing and the justice it can yield, but he says there needs to be checks and balances to prevent abuse.

"Was there a confession? Several eye witnesses? Was it on video tape?" Reyna asks.

Those conditions should be considered, he says, on a case-by-case basis to filter out manipulation of the system.  He also says the DNA request must actually relate to the charge in each conviction.
If Reyna had been in a coma these past few years, maybe you could forgive him. But he's been mostly conscious, so he should know about all the recanted confessions and mistaken eye witnesses that litter recent history, frequently only uncovered because of the Ch.64 postconviction DNA testing he now decries. (Texas' statute first took effect in 2001 and was revised in 2011 to minimize DAs' ability to oppose testing). About a quarter of DNA exonerations include confessions or guilty pleas later proven false by DNA. Ditto, and then some, for eyewitnesses: roughly 3/4 of DNA exonerations included faulty eyewitness identifications.

Ch. 64 prioritizes DNA testing in old cases because the identifying evidence it produces is superior to eyewitness or even confessions, sometimes proving to be a corrective to those types of evidence, which have higher error rates than has been frequently understood. It should also be added that Renya's schtick about how any and every defendant in history could seek a Ch. 64 motion is absurd on its face. There is a specific set of limiting criteria in the law ensuring testing occurs only when it might be probative. Most cases don't have biological evidence and even for those that did, in most older cases the evidence wasn't retained so there' nothing to test.

Before Governor Perry signed this year's new changes into law, Texas' old DNA testing statute did allow prosecutors to object to DNA testing based on some of the grounds Reyna mentions. The problem was, prosecutors like Williamson County DA John Bradley (from whose office Reyna recruited his first assistant because he admired Bradley's shop) used those mechanisms to fight DNA testing tooth and nail even in cases where innocence is plausible, often expending far more time and resources in opposition than would be taken up just by testing the evidence. In the Michael Morton case, Bradley and Co. spent six years opposing DNA testing until the law changed and they had no choice. When the evidence was tested, it turned out Morton was innocent and the guilty man had been running free all this time, most recently living in Bastrop. (Some of the DNA exonerations in Dallas came in cases where the DA who preceded Craig Watkins, Bill Hill, had vigorously opposed DNA testing.)

Because of cases like Morton's - and for that matter like Hank Skinner's, whose request for DNA testing presently sits before the Court of Criminal Appeals following their recent stay of his execution - Texas legislators changed the law. Giving prosecutors so many excuses to oppose DNA testing resulted in unacceptable delays and denials of justice, so the Legislature streamlined the process. Morton turned out to be innocent; if Skinner turns out to be guilty, the new law will have been no less valuable, having ensured everyone can be confident, to the Nth degree, that the state has not executed an innocent man.

Yes, some inevitably will try to game the system, but in reality the number of Ch. 64 DNA cases are diminishing, or soon will be, because so few jurisdictions retained evidence from older cases and so many of those old cases have now been vetted. There are a few remaining caches of old rape kits and other biological evidence to sort through before DNA exonerations become an historical footnote, but to the extent such testing was incorporated more on the front end, those opportunities will arise less and less often.

I've never seen hard data on the results from Ch. 64 motions, but on the morning the bill Reyna is complaining about was heard in committee at the Texas Legislature, I recall speaking to Michael Ware, an attorney who at the time (he's now in private practice) headed the Conviction Integrity Unit for the Dallas District Attorneys office. That division conducted a large-scale review of old DNA cases in conjunction with my employers at the Innocence Project of Texas, and according to Mike, the cases where they commissioned testing came back roughly 1/3 each into three categories: Excluding the defendant as a suspect (i.e., exonerating them), proving their guilt, or inconclusive. So in a majority of Ch. 64 cases, if those estimates can be generalized, you wouldn't see an innocent person walk free. But after debating the issue for years, on the advice of the Tim Cole Advisory Panel on wrongful convictions, the Legislature decided it's worth blowing by critiques like Mr. Reyna's to insist on testing for the sake of people like Mr. Morton who're innocent, imprisoned, and have no other hope for salvation.

In other words, the state for nearly a decade since Chapter 64 first became law has been having the debate Mr. Reyna now wants to engage in. He's just shown up late for the party, after the topic's been vetted and the decisions have already been made. The time for whining, though, is past.

My advice: Now that you've read the law and know (more or less) what it says, Mr. Reyna, just stop issuing press statements about things you don't understand and test the damn evidence.

RELATED: From the Texas Independent, "Despite deadline in new law, few Texas agencies reported count of untested rape kits."

See related Grits posts:

25 comments:

Anonymous said...

Makes one wonder how many innocents Reyna knows he's convicted. He must have a lot to hide...

The Comedian said...

As a great philosopher once said: "You can't fix stupid."

Gritsforbreakfast said...

He's barely been in office 10 minutes, 8:30. I think some of this is inexperience talking.

ckikerintulia said...

Ten minutes or ten months, Grits?

Gritsforbreakfast said...

I'm joking Charles. He's a young attorney who beat a long-time incumbent in the 2010 GOP sweeps. So really it's something like 21 months. But in the context of this particular argument, at least, he may as well have only been here 10 minutes.

Anonymous said...

This guy is attempting to use victims, as many do, for his own purposes. Doesn't he think victims have an interest in making sure the right person was convicted. Also, what about the other potential victims where a real criminal remains free because the wrong person was convicted? This isn't about victims, its about protecting a broken system at all costs.

Anonymous said...

It just occurred to me what this really about. I recall reading something saying that when this guy was elected he said he intended to run his office the way John Bradley runs his. DNA testing has made his hero look bad, so instead of realizing that his hero is a slimeball, he has to attack the thing that brought his hero down. Not surprising for someone so weak-minded as to see someone like Bradley as a hero.

Anonymous said...

It's going to be interesting to see what the results are of the testing in the Skinner case. Based upon my limited understanding of the evidence in that case, I would be willing to bet it shows he's guilty, or it's inconclusive. If it shows he's guilty, I can already hear the anti-death penalty crowd sanctimoniously claiming "what did it hurt." Well, maybe nothing, actually. But what will public sentiment be? I would also be willing to bet that for every exoneration accomplished by DNA testing, there will be hundreds, if not thousands, of convicts who are going to try to game the system. Toward this end, I think Reyna does have a point. There are sometimes some very enlightened discussions on this blog regarding the economics of the criminal justice policy. As time goes by, I will be curious to see some type of cost/benefit analyis regarding the expense of this additional DNA testing vs. how many wrongful convictions are corrected.

Anonymous said...

"I will be curious to see some type of cost/benefit analyis regarding the expense of this additional DNA testing vs. how many wrongful convictions are corrected."

If it was your wrongful conviction that was being corrected, how much would it be worth to you?

Anonymous said...

Those like this DA and 10:37 are being disingenuous when they raise the cost issue. First, I doubt that it costs much to do a DNA test. If the DAs would stop making such a fuss and just allow it to be done the costs would probably be minimal. And, I may be wrong but I'm thinking in some of these cases, others have paid for the testing.

Second, these are the same people who are always advocating more spending on criminal justice, more police, more resources for police and prosecutors, more jails, more prisons, etc. The only spending they oppose is that which might expose problems in the system.

These people suffer from a type of mental illness, a denial that the system is ever wrong. I'll call it Criminal Justice Denial Syndrome. While they may know that it has been shown that innocent people are wrongly convicted, they seem to be in denial that it ever happens. I think they believe that, even if the person were innocent they surely did something to deserve what they got..so, the system didn't screw up and there is no need to do anything to fix it. This really seems to be a delusional belief that they have. Maybe we need to set aside some money in the criminal justice system for mental health treatment for prosecutors that suffer from this illness.

Its scary to see people who wield such power but lack the insight to see what should be as plain as the nose on their face and who will use any argument, no matter how lacking in credibility, to protect the system at all costs.

Anonymous said...

This is 10:58 for those of you that hate anonymous posts. Another thing that bothers me is the attitude that we should accept a certain number of wrongful convictictions because the cost of feretting them out is too high?

I recently watched an old movie about the Nuremberg Trials of the judges who enforced the laws implementd by the Nazis. One thing that struck me is that people would tolerate, and even participate, in some very heinous things because they were convinced it was for the good of the country and the people. I see that in our criminal justice system. So what if some people are wrongly sentenced to spend most of their lives in prison, or are even executed. Its for the greate good, isn't it?

Anonymous said...

It appears that Reyna honestly believes that each person that has had a trial, and found guilty, is truly guilty. As well as if a person is found innocent, they are truly innocent. Huh? If DAs don't share all of the evidence, or if defense attorneys do not attempt to defend their client, then the jury only hears what the court wants them to hear. Not the type of justice system America was founded on. Reyna's "hero" is getting all type of mud slung on his ability, is Reyna next?

Anonymous said...

I'm just curious as to how much you criminal justice "reform" advocates are willing to spend to achieve perfection in the criminal justice system. It seems to me that your "spare no expense to prevent one wrongful conviction" is just the flip side of the contention by many of the "law and order" types who advocate incarceration to "prevent one innocent victim" from being hurt. I suppose there may be some prosecutors or cops who feel like they're infallible, but I don't know any. The system is very much imperfect, hence the burden of proof being "beyond a reasonable doubt" as opposed to "beyond any doubt whatsoever." Ultimately, advances in evidentiary technology and "best practices" should be pursued. At the same time, crimes really do happen and innocent people are victimized--every day. As a free society, we have to be able to protect ourselves from those who would seek to do us harm. If the system improvement, so be it. But I do think it's possible, especially in today's age of blog advocacy and sensationalized media, for there to be an "over-correction." Beware the law of unintended consequences.

Anonymous said...

Isn't his First Assistant a former Williamson County DA? Just saying...

Charlie O said...

Let me make sure I have this right. According to Reyna, it's better to execute an innocent, than allows ten guilty to game the system. Wow! Gladder and gladder everyday I put Texas in my rearview mirror.

Anonymous said...

I doubt Reyna has won a case since he's been licensed.

His stance as a prosecutor makes you wonder how well he represented his clients when he was a defense lawyer.

And he was only swept in because Secrest refused to push weak cases, causing an ignonrant backlash from his ignorant voters. He wouldn't stand a chance against a real opponent based on the issues.

Anonymous said...

If it was your wrongful conviction that was being corrected, how much would it be worth to you?

1:43 - what's your answer?

Anonymous said...

Does anyone here know what it actually costs to do a DNA test?

I suspect the additional cost some complain about mostly comes from the court fights that the DAs cause in opposing the tests. So, they only have themselves to blame for the added costs. If they don't oppose the testing, I suspect the cost would be minimal. I wonder, how much does a DNA test actually cost?

Anonymous said...

I bet that the costs of providing DNA testing to every convicted person that requests it would be but a fraction of the costs that is added to the system by prosecutorial and police misconduct. So, 1:43, I assume, since you are so concerned about costs, you will support implementing serious consequences for prosecutors and police that engage in intentional misconduct. Furthermore, I assume you will oppose the creation of any new criminal offenses by the legislature and will support repealing some offenses currently on the books to reduce costs. Will you support these things? Or, is your concern about costs just an excuse to oppose DNA testing because you don't like the fact that your prescious system might be embarassed.

STOPtheMADNESS said...

I love you blog!! It's the first time I have read it and I'm hooked! My husbands uncle was been wrongfully convicted 29years ago!! Today the Midwest Innocence Project is working hard to get him fully exonerated!! Reading about those in the system like Mr. Reyna makes my blood boil!! Thanks for your very informative and honest blog!!!

STOPtheMADNESS said...
This comment has been removed by the author.
STOPtheMADNESS said...

I am the co-author of the blog, "Stop The Madness". I am Kay Lincoln, the daughter of the innocent man referenced in the above comment. First of all, I want to commend you for bringing this crazy, scary situation to light. I will definitely be following your blog.
Someone had posted a link to this blog on Facebook and I glanced at it and thought that I must have misunderstood it. How could anyone really go on record as being against post-conviction DNA testing?? But then someone else brought it to my attention and suggested I take a look. I AM BLOWN AWAY that an elected official would take such a stance. Post-conviction DNA testing is the last resort for so many condemned men and women in this country, my father being among them. He was convicted in 1983 of a murder he DID NOT COMMIT. In 2010 the DNA was tested and excluded him. We are still fighting for his release and we are making progress. But if Reyna had his way. This completely innocent man would never have the chance to prove his innocence.
What the hell is wrong with this man??? He spouts off about caring for victims but refuses to acknowledge that a wrongfully incarcerated individual and his or her family are also victims, victims of the broken justice system.
Come on Reyna, you are an elected official and sworn to public service and to uphold JUSTICE!!! Don't try to take away the only chance to prove their innocence that these men and women have.

wisdom of solomon said...

You know, Mr. Reyna is not the only DA I have seen oppose post-conviction DNA testing; there have been many before him. And since they feel this way, I have a suggestion for state legislators: why not outlaw the use of DNA in criminal procedings period? DAs could'nt use it to convict and defense lawyers could'nt use it to exonerate. Make both parties use good old fashion lawyering to either convict or to free the accused.

Phillip Baker said...

One of the problems with posting anonymously is that it allows you to say truly stupid things without people knowing who you are. Just saying...

Bradley fought DNA testing for Morton for 6 years. He could have wrongfully served "only" 19 yrs. But that same office that railroaded Morton also left the real killer to roam free. It's not proven yet, but I for one believe he murdered my wife, Debra Masters Baker, in 1988. You want to talk costs? Think of 2 extended families devastated. Think of me raising our small children alone. Counseling, residential treatment schools are only some of the money costs. The worst cost was and remains the pain Norwood caused that has lasted these 23 years. And you think Norwood just quit killing in '88 at 2 victims? Believe me, I would gladly have paid out for that Morton DNA testing to finally uncover the real killer.

Recent Pew poll showed high support still for the death penalty. Then it also showed that a big share of those pro-death believed that system is not always fair and some innocents have died. And of those, over 50% STILL supported the penalty! Anon seems to fit into this group- money over lives. Time for another Nuremberg trial? We Americans blamed the German people for turning a blind eye to the Holocaust. Aside from scale, what is the difference between killing innocent people to save tax money and turning a blind eye to wrongful state killings?

I've had to two close family members murdered in my life, and I am 100% against capital punishment. So don't even start the "If YOU had had this happen..." BS.

Grandmom said...

Prosecutors seem to stick together. They think that once they railroad an innocent man, he should stay railroaded.