Wednesday, June 04, 2008

Hervey on innocence proposals: "We're past meet and discuss"

After speaking this afternoon with Texas Court of Criminal Appeals Judge Barbara Hervey about the CCA's new Criminal Justice Integrity Unit (CJIU), described yesterday on Grits here, I think there's room to hope the new body will spearhead an important range of modest reforms. (I appreciated her personally calling me back about it.)

This new "unit" definitely represents a shift in the terms of debate among Texas' top judicial circles. The CJIU could be a great thing so long as state leaders don't acquiesce in the idea that the court's new reform body will solve all the problems related to convicting innocent people.

On some matters under the purview of the court, Judge Hervey said she's confident change can occur rather quickly. "We're past meet and discuss," she told me, "we want some of them accomplished."

For a range of limited reforms, this may be a good vehicle to do that. But if every reform Hervey envisions is enacted to the fullest extent she describes, the discussion about preventing wrongful convictions will still be far from over.

Judge Hervey predicted legislation to increase compensation for wrongful convictions would pass next year, as well as legislation to improve crime lab reliability and promoting "education" on eyewitness ID best practices.

Hervey also foresees implementing writ training for attorneys and judges. The CCA processes 6-8,000 post conviction writs per year, she said, and 50% are remanded to the original judge for further consideration, creating a great deal of unnecessary confusion and lag time.. "Judges need to better understand how to handle writs," said Hervey. "Some jurisdiction have writ staff, some don't." (The CCA already administers millions in training funds and needs no additional authority to implement that plan.)

She admitted, though, that her vision of writ training wouldn't do anything to make it easier for innocent defendants with no DNA evidence in their case to get their writs heard. About 75% of post-conviction writs are pro se, Hervey said. She thinks forms the court has developed helped the problem somewhat, but stopped short of agreeing writ writers in prison should have legal assistance. "I don't know if they get help or not," she said, but if they claim actual innocence, the CCA sends them a letter telling them to contact one of the law-school based Innocence Project clinics. If their innocence claims can be corroborated by DNA, she said, writs claiming actual innocence can be heard by the CCA even if prior writs were denied multiple times.

I'm glad the courts' new CJIU will be contemplating these issues, as long as their efforts are not portrayed as the end-all be-all of possible changes. From Hervey's description, the CJIU sounds like some sort of hybrid activist advisory board that will mostly limit itself to endorsing legislation and executing projects within the CCA's administrative authority. She didn't dispute my characterization of the group as "just another blue ribbon panel," but responded, "it's a pretty good group, though, isn't it?" I allowed that it is.

There are limits, though, to how far the CJIU can be expected to take innocence reforms. On eyewitness ID best practices, for example - particularly regarding "double-blind" procedures or showing photos sequentially instead of in a group - Hervey said the group would at most play an educational role. They plan to bring NY Innocence Project chief Barry Scheck to Texas to give presentations to key law enforcement leaders, and will encourage "best practices," she said, without requiring them.

Asked whether the CCA itself might ever require evidence-based lineup procedures, Hervey said that would be difficult because small agencies may not have sufficient resources to implement reforms. (She predicted the first time the issue comes before the court will probably be to decide whether an expert on flaws in eyewitness testimony can be used to debunk a witness.)

The same goes for requiring interrogations to be recorded. While it may be a good idea and the CJIU could recommend it, she said, disparate resources among agencies make it impossible to require them to all buy recording equipment. (As an aside, in 2001 the Lege authorized and voters approved $18 million in bonds to purchase dashboard cameras for local agencies, so perhaps the same could be done with recording equipment for the interrogation room.)

These recommendations represent a dramatic shift in the political center on these topics, but they aren't enough by themselves to prevent wrongful convictions in the future or identify those from the past. Simply recommending critical reforms but leaving them discretionary for police seems problematic. Texas has 2,500+ separate law enforcement agencies registered with the state licensing agency (TCLEOSE) and there's no way to ensure they all do the right thing without enshrining stronger requirements into law.

UPDATE: See related Dallas News coverage. And from Unfair Park: So the state will have an integrity unit, which will do what exactly?

RELATED: The Dallas News says the new CCA unit should not forestall additional legislative reforms.

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