Innocence bills resurrected, doomed as Senate deadline tolls

Wednesday was a big day on the innocence front. It began with the announcement of the 20th DNA exoneration in Dallas (yet another case where an eyewitness picked the wrong person out of a photo lineup), saw the Governor sign the state's compensation bill for falsely convicted inmates, and ended with a couple of innocence bills that died in the House coming back to life as amendments in the Texas Senate.

Work on pending innocence legislation came literally down to the wire last night, with the Texas Senate considering Rep. McLendon's HB 498 less than an hour before their deadline cut off consideration of additional bills for the session. Sen. Rodney Ellis carried the bill in the capitol's eastern chamber.

HB 498 was scaled back to a study whether an innocence commission should be created in order to mollify concerns from the Governor and others about creating a new bureaucracy. Those revisions, however, cleared the way for the bill to become a vehicle to tack on two other good pieces of innocence legislation that died in the House thanks to "chubbing" on voter ID.

Amended to the bill were agreed versions of SB 1864 expanding access to DNA testing and SB 1976 clearing technical hurdles to filing writs in cases where discredited scientific evidence was used at trial. Hopefully, the House will concur in the Senate amendments and at least this much can be salvaged from the wreckage they caused over Memorial Day weekend.

Senators did not add SB 117, which would have required police departments to have written policies on eyewitness identification procedures, even though that body had already passed the same legislation unanimously once before and the Governor was willing to sign the bill. Freshman Sen. Joan Huffman spearheaded efforts to keep such language out.

I can't believe senators wouldn't accept the agreed language on SB 117, which they'd earlier approved unanimously. The Court of Criminal Appeals' "Criminal Justice Integrity Unit" said eyewitness ID reform should be the Legislature's highest priority for preventing false convictions, but thanks to a handful of recalcitrant senators and the meltdown in the House, Texas must wait two more years before rectifying this glaring problem.

Similarly, objections were raised to adding even a relatively watered down version of SB 116 encouraging law enforcement agencies to record custodial interrogations, leaving another lingering, well-documented source of false convictions unresolved. (About a quarter of DNA exonerees either confessed or pled guilty.)

It's terrific Senators Ellis and Whitmire were able to resurrect SBs 1864 and 1976 from the ashes of the House of Representatives' flameout. For that, both men (and their staffs) deserve thanks and approbation.

However, with the deaths of SBs 116 and 117, the only significant legislation passed aimed at preventing false convictions was SB 1681 by Hinojosa requiring corroboration for testimony by jailhouse informants. That bill has already been approved by both chambers and sent to the Governor.

So all in all, the 81st Legislature leaves a lot of work undone if they hope to reduce the number of innocent people convicted and sent to prison in this state. For all the well meaning statements from the leadership, particularly regarding the Tim Cole case, the bills that finally passed this session barely scratched the surface of the most important innocence issues facing the state, in particular failing to address the main cause of Tim Cole's false conviction, not to mention Jerry Lee Evans who was freed in Dallas yesterday: Biased and flawed eyewitness identification practices.

If the Governor decides (God help us) to bring the Lege back for a special session, IMO he should heed the CCA Integrity Unit's advice and add eyewitness ID reform to the call. The idea already has strong support in both chambers and would likely have passed save for the voter ID meltdown.

Yesterday's fresh exoneration serves as a strong reminder that what Texas is doing now isn't working, at least not all the time. Modern policing techniques can reduce mistaken eyewitness testimony significantly using well-established, common-sense procedures for showing photos and handling lineups. Going forward, continuing known bad practices threatens to foment a crisis of confidence in the justice system - with increasing justification.