Friday, February 18, 2011

Innocence Man: Gallego propels raft of innocence bills to front of Criminal Jurisprudence line

The House Criminal Jurisprudence Committee has posted an agenda which includes three important pieces of innocence legislation carried by Chairman Pete Gallego:
  • HB 215 Relating to photograph and live lineup identification procedures in criminal cases.
  • HB 219 Relating to the electronic recording and admissibility of certain custodial interrogations.
  • HB 220 Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence.
State Sen. Rodney Ellis is carrying the first two on the senate side, while Senate Criminal Justice Chairman John Whitmire has filed a companion bill to HB 220. In the House, Gallego is Innocence Man!

All three of these bills passed out of the same committee last session before dying in the hyperpartisan tumult over VoterID on the House floor, where they all sat on the Calendar as time expired in 2009. Though the committee's membership has changed rather dramatically since then, the bills have since been vetted by the Timothy Cole Advisory Panel and most of the special interests who usually oppose reform bills have signed off on the compromise language. So, while weaker than Grits might prefer - particularly as it regards a "remedy" when proper lineup procedures aren't used or interrogations aren't recorded - this legislation represents an important first step toward addressing false convictions based on flawed eyewitness IDs, false confessions, and junk science. Once policies and procedures are in place and law enforcement realizes the new approach benefits them as well as suspects, it may be possible to strengthen the laws down the line.

Making me particularly hopeful, the Dallas News this week ran a blog post interviewing Criminal Jurisprudence Vice Chair Will Hartnett, who said he plans to sign on as joint author of the eyewitness ID bill. Says Hartnett:
"I'm trying to think of the old saying ... "The conviction of an innocent person is a crime unto itself." It's an indictment of our justice system. Our country was founded on protection of liberty and individual rights. The justice system needs to bend over backward to protect innocent people. The fact that we've seen so many people imprisoned for long periods of time, when they were innocent, indicates we've got a problem that needs to be fixed."
Though most Grits readers are aware, it bears repeating: Flawed eyewitness identifications lie at the root of the large majority of DNA exonerations, followed by mendacious informants, false confessions and flawed forensics. Far from maximally reliable as often presumed in court, eyewitness recollections are in fact a form of trace evidence, and like all trace evidence it can be contaminated during collection. HB 215 requires departments to have a policy on lineups (most don't) and lets defense counsel tell juries if the rules weren't followed. IMO this bill should have at least a jury instruction as a remedy, but inexplicably, in 2009 the criminal defense bar fought tooth and nail to remove all remedies from the bill, leaving the version considered by the Tim Cole Advisory Panel radically weakened. Ironic, that, but whaddya do?

By contrast, HB 219 and HB 220 won't necessarily prevent false convictions but provide new tools to try to rectify the problem. HB 219 requires recording interrogations in serious, violent crimes, with a jury instruction as a remedy. Here, though, I'd actually go farther. While for a variety of reasons I think a jury instruction is the right remedy for eyewitness testimony, a confession is a horse of a different color and if I had my way, I think the exclusionary rule should apply. That, however, is not what this bill does, which is why for the most part law enforcement interests are okay with it. Prosecutors actually prefer recorded confessions, of course, because they're better evidence. And the declining cost of viable recording equipment makes the expense factor for local agencies increasingly minimal.

HB 220 is perhaps my favorite of the three, a simple, clean little bill on a little-understood topic: habeas corpus. It addresses a situation which has faced several DNA exonerees before their names were finally cleared: They filed so many habeas writs they were declared writ abusers and prohibited from filing successive writs in the future in the interest of finality. (Of course, the Catch-22 is that, if you're really innocent, you might just keep filing habeas writs no matter how many times they were turned down!) This bill lets habeas writs under such circumstances be considered if "relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial." The bill was the subject of intense negotiation last session with the DAs lobby but (knock wood) those agreements appear to be holding I've heard no complaints about the version presently on the table.

Though anything can happen and there's much work ahead, there's also reason for optimism these bills can pass: The Chairman choosing to author them, much less propel them to the front of the line, means they might actually have time to get out of the House this time, and essentially similar versions passed the Texas Senate in 2009. But that's getting ahead of ourselves. First up: Tuesday's committee hearing. I'm quite looking forward to it.


Eyewitness identification
Recording interrogations
Habeas writs


Anonymous said...

I wonder why the habeas bill is necessary. Inmates can file subsequent writs if they are based on a factual or legal basis that wasn't previously available. Have the courts held that a new scientific or forensic breakthrough would not satisfy that requirement?

Anonymous said...

This new legislation will only go so far. If the authorities have enough pressure on them to solve a case then they'll manufacture the necessary evidence to do so.

Everyone is aware of the high numbers of police misconduct, but few believe that crime scene investigators would be dishonest, and that is simply untrue as the conviction last year of Omaha, Nebraska's CSI chief David Kofoed proves.

Everyone always assumes that the finding of DNA evidence is irrefutable, but anyone who follows the Twitter Newsfeed!/InjusticeNews understands that lying is second nature to all law enforcement officers.

Common sense dictates that there are hundreds of David Kofoeds out there framing innocents...

DEWEY said...

"If the authorities have enough pressure on them to solve a case then they'll manufacture the necessary evidence to do so."
Or destroy it. Ask Clarence Brandley.

Gritsforbreakfast said...

9:10, It's true that a plain reading of current law would seem to support allowing a subsequent writ when new scientific standards undermine the validity of a conviction. However, Texas CCA rulings have been called many things, but seldom "plain." ;) In the actual case law, or so I'm told by the attorneys who're working on some of these cases, the sitting CCA makes them thread a pretty thin needle in non-DNA cases. Keep in mind, Texas' Chapter 64 DNA testing statute exists because they wouldn't allow Roy Criner's innocence claims based on new scientific evidence. This keeps them (hopefully) from having to do a Ch. 65 for dog scent lineups, Ch.66 for debunked arson investigations, etc.. Or at least, that's the idea.

Anonymous said...

What do eyewitnesses see? Really nothing.

Gritsforbreakfast said...

"What do eyewitnesses see?"

As is often the case, the answer is "it depends." It's trace evidence that can be contaminated, but trace evidence can also be valuable. If the witness knew the person they're identifying before the event, the value goes way up. When identifying strangers, there are more frequently mistakes - read some of the related links at the end of the post for specifics.