Bills would bolster Great Writ for the 21st century, expose prosecutor misconduct

The Texas Senate Criminal Justice Committee yesterday tackled a full plate of issues. I was there on behalf of the Innocence Project of Texas to support two bills, both by Chairman John Whitmire. The first up of the two, SB 825, would preclude the state bar from issuing secret, "private" reprimands when grievances are sustained against prosecutors for withholding exculpatory evidence and changed the statute of limitations  for filing such grievances so it doesn't begin to run until the concealed evidence was discovered. Exoneree Michael Morton was the star witness, exhibiting remarkable grace and class. Chuck Lindell at the Austin Statesman has more detailed coverage as does Brandi Grissom at the Texas Tribune, so go read their stories. (And for those interested, see prior, related Grits posts and earlier coverage from Lindell and Grissom.) Go here to watch video of the testimony, which began at the 30:45 mark.

Less well covered in the press, though mentioned in passing at the end of this SA Express-News article, was Chairman Whitmire's SB 344 reforming the state's habeas corpus statute, a bill which Maurice Chammah at the Texas Tribune skillfully explicated in a story last month. That bill, which was a recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions, would clarify the legal standard by which habeas relief may be granted for defendants convicted based on forensic testimony that was flawed or later debunked. This issue has important implications for innocence cases in an era where several longstanding forensic disciplines - from arson science to shaken baby cases to Deputy Keith Pikett's dog-scent lineups - have been undermined or discredited by modern science.

Testimony included a discussion by my Innocence Project of Texas colleague Nick Vilbas who is conducting the joint review of arson cases with the State Fire Marshal as per a recommendation from the Texas Forensic Science Commission. IPOT sent questionnaires to around 1,000 inmates in TDCJ convicted of arson, with responses coming from fewer than 200 of them. Of those, about 35 merited further review and only a handful of cases have surfaced - in the single digits - where defendants claimed innocence from the get-go and were convicted based solely on erroneous and since-debunked testimony from arson investigators. (In many others, confessions, witnesses, or other evidence supported the validity of the convictions.) I thought it was especially important for senators to hear Nick's testimony because it shows this legislation won't open any "floodgates." Innocence cases are the exception, not the norm, but this bill allows for correcting mistakes when the unthinkable does occur.

I was delighted that both appellate specialist Brian Wice and former District Attorney Mike McDougal came in from Montgomery County to testify for the bill and it was good to meet both of them. They were the lawyers handling the writ in Ex Parte Robbins, a pivotal case where a medical examiner's erroneous testimony provided the "sole bases" for Robbins' conviction but the Court of Criminal Appeals denied habeas relief. (See earlier Grits coverage.)

Wice testified that since the Magna Carta the "Great Writ" has been the "final fail safe mechanism" to rectify "the wrongful conviction of people like Michael Morton and Anthony Graves" Such travesties of justice, he said, typically stem from the "unholy trinity" of "rogue prosecutors, inept defense attorneys," and  often, supposed experts "who are anything but." Expert witnesses, he said, have a "special aura of believability, a mantle of credibility" beyond that of others providing testimony in court. Sometimes though, he said, alluding to an old saw from Mark Twain, "an expert's just a guy from out of town." He said the bill would allow for "greater reliability and quality control" to rectify wrongful convictions.

McDougal, who was the prosecutor in the Robbins case, spoke briefly, posing this question to the senators: If you were on a jury and heard a doctor testify that the defendant had caused the death of a child, then five years later read in the newspaper that the doctor changed his mind and now believed the child's death was not a result of the defendant's actions, "How would you feel?" That's what happened to him as DA in the Neal Robbins case, he said, which is why he agreed with Mr. Wice's habeas writ on behalf of Robbins asking for a new trial. He said the district judge in the case did a good job on the fact finding for the writ and along with the DA recommended Mr. Robbins receive habeas relief, but the Court of Criminal Appeals would not agree. "That's not right," he said emphatically.

Innocence Project of Texas President Gary Udashen, a prominent appellate lawyer from Dallas,  said there "seems to be a growing consensus at the Court of Criminal Appeals that new scientific evidence should be a basis for a new trial if it undermines the validity of a conviction, but there's not a consensus as to the legal standard" by which such cases should be judged. This bill, he said, would allow the court to quit haggling over the standard for adjudicating these questions and focus on the underlying merits.

Sen. Whitmire rightly pointed out that, while the Senate has approved similar legislation before, the barriers to passage have historically come in the House. Two sessions ago the bill passed the Senate, cleared the House Criminal Jurisprudence and Calendars Committees, but died while waiting on the House floor calendar while Democrats engaged in a days-long bout of "chubbing" (sort of the House's version of a group fillibuster) over Voter ID, killing this and hundreds of other bills. Last session, opposition from the Harris County District Attorney delayed the legislation long enough to kill it. Whitmire chided prosecutors over that fact, telling Shannon Edmonds of the prosecutors' association, "if y'all would leave it alone in the House it would become law," drawing laughter from the crowd.

Having said that, especially after recent press accounts of the Harris DA blasting the Innocence Project, I'd be remiss if I didn't point out that, unlike in prior sessions, the Harris County District Attorney's office was quite open to working with IPOT and Chairman Whitmire's staff on the bill. In fact, IMO their suggestions - which were added as amendments in committee - actually improved the legislation, or as Chairman Whitmire put it, "made a good bill better." Shannon Edmonds told the committee the amendments relieved any "heartburn" prosecutors may have had. Sen. Joan Huffman, who'd echoed the initial concerns of the Harris DA and championed their amendments, said the result was "a bill I'm very comfortable with and that's very good for the process." I couldn't agree more.

Go here to watch video of the habeas bill testimony, which began at the 1:16:55 mark.

Both bills were voted out of committee yesterday. The Morton legislation was slated for the local and consent calendar, while rookie Sen. Charles Schwertner's lone "nay" vote means the habeas bill will need to be brought up on the Senate floor, which theoretically could happen as early as next week.