Tweaking Texas' junk science habeas writ, and why the state must give more notice when it asks a judge to evict you than to kill you

Legislation codifying the Texas Court of Criminal Appeals' interpretation of Texas' junk science writ (see here and the second item here) has been sent to Gov. Greg Abbott for his signature and a bill to require the government to give notice when setting execution dates has gone awry.

To evaluate  these obscure but important subjects, Grits recorded a brief podcast this afternoon with Mandy Marzullo, the Policy Director for the Texas Defender Service, with whom your correspondent worked closely on a couple of items in the waning days of session. (Some camera-eyed, long-time readers may recall that, in a previous Texas tour, Marzullo helped Grits push to create the indigence rules for the Driver Responsibility surcharge, a laborious mitzvah for which I'll remain eternally grateful.)

Mandy provided excellent summaries of a couple of important pieces of legislation: HB 3724 by Herrero/Whitmire and SB 1071 by Hinojosa/Thompson, neither of which have received much if any attention in the mainstream press. The former bill establishes an important benchmark for courts evaluating junk science claims (see coverage from the Marshall Project) while the latter attempts to establish procedures for notifying lawyers for capital defendants when an execution is scheduled (presently, in some counties, they get less notice than you'd receive if you're being evicted from your apartment).

Give it a listen. Or go here for the audio file in other formats. See a transcript of the interview below the jump.

Interview with Mandy Marzullo, Policy Director of the Texas Defender Service, May 27, 2015. 

Scott Henson (Grits)  Hello, this is Scott Henson on a Grits for Breakfast podcast on May 27, 2015.  And I'm here with Mandy Marzullo who's the Policy Director at the Texas Defender Service.  How are you doing, Mandy?  How's your session going? 

Mandy Marzullo:    It's going well.

Grits:    I wanted to start off asking you about House Bill 3724, the Junk Science Writ update, in reaction to the Ex Parte Robbins case.  Readers will probably remember I've covered this quite a bit on the blog in the past as the court decisions were coming down.  But tell us about this bill and why it was needed and what they did with it.

Mandy:    Well, what this bill does is it clarifies that, under the statute, a defendant is entitled to relief where the testifying expert recants their testimony.  Basically, when someone comes up and says, "I made a mistake.  I got it wrong."  Often in these instances, there's even no crime there, and then the court can vacate the conviction and they can address it on the basis of new evidence.

Grits:    So why is this necessary?  I know last session, we passed our Junk Science Writ and the court has been interpreting that.  Tell us why they've come back for a second bite at the apple to adjust the law?

Mandy:    Well, in Ex Parte Robbins, the court ruled that this type of evidence is actually included under the statute.  But there are some sort of rumblings within the court as to whether or not that is a correct interpretation of the law as written.  In Robbins, the majority opinion just interprets the statute on its face and says it clearly does include this type of testimony or recantations.  But, if you look at the dissents and the concurrences, they really differ on the grounds of the legislative history.  The dissenters say that there isn't enough evidence that this is what the Legislature intended when they enacted it, that it just includes changes in scientific disciplines and our understanding of how it should apply.  And the concurrences from Cochran and Johnson disagree with that.  And, with this bill, the legislature really came out of the leadership from Chairman Herrero's office and John Whitmire.  They definitely wanted to clarify for the court that they had two concerns in enacting this statute: not only problems with the science itself, but also problems where lab techs or forensic scientists just make errors or just are bad scientists.  And, in those instances, if someone's incarcerated due to an error, they should get relief. 

Grits:    All right.  So, the other fascinating thing about this bill and this situation is that, after Ex Parte Robbins was decided last year, there were three of the members of the five-member majority who left the court.  And they were replaced by several former prosecutors.  And, now, there's been a Motion for Rehearing filed at the court that's been moving along essentially parallel to the process of the legislation.  So we have this odd situation where the legislature nearly unanimously, there were hardly any no votes on the Writ, has pushed forward its interpretation of the statute and said, "Here's what we meant when we passed it."  And the court is moving to overturn, in all likelihood, what they did.  Why else would you rehear it if not to undo your recommendation?  We won't know until they do it, but they're going to have their oral arguments on June 3rd.  And the legislature ends June 1st and we won't really find out until after whether Abbott vetoes or not.  But it's all a very interesting, sort of competing effort to say what this statute means.  I can't really think of too many situations quite like it. 

Mandy:    No, I mean it's rare.  But, in Texas, in terms of our post-conviction writs, there has historically been a dialogue between the legislature and the Court of Criminal Appeals where they've gone back and forth about when a defendant is entitled to vacating their conviction under the law.

Grits:    Right.  Especially Chapter 64 DNA Testing.

Mandy:  And that was another bill that passed this session.  There was some back and forth between the Court of Criminal Appeals and the legislature about how much evidence a defendant needs to put forward that there is biological material to be tested, whether or not the defendant needed to prove it or if there was flexibility there.  And the legislature came back in response to another decision and said, "A defendant should be able to get testing of evidence or have access if they can satisfy all of the criteria under the statute and establish that there's a reasonable likelihood that there is biological material."  

Grits:    Since, of course, the evidence is not in the defendant's control and, so there's no way they can know for sure— 

Mandy:    Sure. 

 Grits:    —Until they actually file the evidence [sic: motion]. 

Mandy:    For the testing.  

Grits:    That's exactly right. 

Mandy:    Yeah.  And, in this case, I mean, it's hard, you know, with the Court of Criminal Appeals, all of their decisions about setting rehearings, we're really reading tea leaves there.  It's hard to know— 

Grits:    Sure.  Of course. 

Mandy:    —Who's voting, when, and how.  But I do think that just the legislature passing this statute in and of itself regardless of whether the Governor signs it is establishing a legislative history that's fairly firm and may even sway some of the dissenters here.  If you look at the dissents that were written by Hervey and Keller and Keasler, they really seem to view there being a slim legislative history— 

Grits:    Right.

Mandy:    —On this issue. 

 Grits:    Keasler in particular. 

Mandy:    And this fixes that.  This is definitely, it's almost the same membership saying, "No, we meant it differently."  Or at least ... 

 Grits:    The same two bill authors, the same two Committee Chairmen. 

Mandy:    At a minimum, it's a communication that they think that these individuals should be entitled to relief when there's a recantation. 

Grits:    All right.  So session's just about over.  What else do you have going on?

Mandy:    The only other bill that I have going on is what I used to call the "best little bill in Texas."  But never has such a small and modest proposal been so complicated.  Under the Texas Code of Criminal Procedure, there's no procedure for requesting and setting an execution date.  So, what the law just says is the court will set a date and the death warrant will be served on TDCJ.  So, in practice, prosecutors can request dates and the court can set them and the defense attorneys receive no notice at any point in the process.  So, what our bill did was just standardize what's already going on in a lot of jurisdictions like Houston and Dallas, where prosecutors file written motions, serve them on the defense, and then the court sets an execution date. 

Grits:    So there are jurisdictions where prosecutors are asking judges for an execution and not bothering to tell the defense counsel? 

Mandy:    Yes.  This happened out of Kerr County a bunch of times recently, but most famously with the Panetti case, where we found out about our client's execution date 14 days after it was set by reading the newspaper. 

Grits:    By reading the newspaper? 

Mandy:    By reading the newspaper.  

 Grits:    All right, then.  Well, it's a good thing you subscribed.  So what's going on with that bill now? 

Mandy:    Well, right now, it looks like we're going to conference committee.  There's a lot of confusion about our goals with the bill and what would be the best policy.  Basically, Governor Abbott's office is nervous that providing defense lawyers with copies of motions will open up the appeals process in this case.  But that isn't historically how it works.  This is sort of analogous to an eviction notice, where you serve someone with your Notice of Eviction before you throw them out of their home.  Here, you're just serving a defense lawyer with a Notice of an Intent to Schedule or a Request for an Execution.  Now, if we have some reason to say that an execution date doesn't make sense or it's premature, we can respond. 

Grits:    Just like if an eviction is improper, you can intervene? 

Mandy:    You can intervene.  But that doesn't happen any time.  I mean, the procedure that we're setting forth under this bill, is already in play in Harris County and they are the biggest user of the death penalty in this state.  They are still able to get plenty of executions without too much protest from us just in this process of scheduling the execution. 

Grits:    So you want the same level of notice for executions that you get for an eviction notice?

Mandy:    Yes.  

Grits:    Well, that seems pretty reasonable and I'm not surprised that it's been so difficult. 

Mandy:    Don't tell me that.  

Grits:    I'm sorry.  Well, good luck with it at the end. 

Mandy:    All right.  

 Grits:    And I hope it works out. 

Mandy:    Thanks, Scott.

Transcribed by www.iDictate.com, edited for clarity and grammar by Scott Henson.