McLennan DA wants law changed to restrict postconviction DNA testing

Readers may recall rookie McLennan County DA Abel Reyna declaring last month to the Waco Tribune Herald that he opposed post-conviction DNA testing because it undermines jury decisions. Rather than back off that absurd statement, Reyna is now doubling down. He seems as oblivious to the history of Texas' DNA testing statute as he has been to its actual language (he earlier opposed testing for the sole-surviving Lake Waco murder defendant but now apparently realizes he had no valid legal grounds to do so under the new statute). At least you can tell by the latest TV news story that Reyna has finally read the law, though his understanding remains dubious, at best. Reported the local ABC affiliate KVVX:

District Attorney Abel Reyna says a change in law allows convicted criminals to file unnecessary requests for DNA testing to reverse their conviction.

"Technically you have any and every defendant who ever pled to a crime or was convicted of a crime potentially could file a post-conviction DNA motion," Reyna says.

The change in Chapter 64 of the Code of Criminal Procedure could mean more money spent carrying out the requests, which are unlimited, but cost isn't the only problem worrying Reyna.

"What concerns me most as District Attorney is that there is absolutely nothing in Chapter 64 with regard to victims and their families," Reyna says.

A new motion in a case closed decades ago could mean new heartache for the family of a victim.

"A defendant could use Chapter 64 to continue to torment a victim's family," Reyna says.

The root of the problem, Reyna says, is that nothing is at stake for the prisoner who files the request. "They can just file it, and it comes back, and it's them and they can just say, 'Ah, darn,' and continue serving their sentence," he says. ...

Reyna supports post-conviction DNA testing and the justice it can yield, but he says there needs to be checks and balances to prevent abuse.

"Was there a confession? Several eye witnesses? Was it on video tape?" Reyna asks.

Those conditions should be considered, he says, on a case-by-case basis to filter out manipulation of the system.  He also says the DNA request must actually relate to the charge in each conviction.

If Reyna had been in a coma these past few years, maybe you could forgive him. But he's been mostly conscious, so he should know about all the recanted confessions and mistaken eye witnesses that litter recent history, frequently only uncovered because of the Ch.64 postconviction DNA testing he now decries. (Texas' statute first took effect in 2001 and was revised in 2011 to minimize DAs' ability to oppose testing). About a quarter of DNA exonerations include confessions or guilty pleas later proven false by DNA. Ditto, and then some, for eyewitnesses: roughly 3/4 of DNA exonerations included faulty eyewitness identifications.

Ch. 64 prioritizes DNA testing in old cases because the identifying evidence it produces is superior to eyewitness or even confessions, sometimes proving to be a corrective to those types of evidence, which have higher error rates than has been frequently understood. It should also be added that Renya's schtick about how any and every defendant in history could seek a Ch. 64 motion is absurd on its face. There is a specific set of limiting criteria in the law ensuring testing occurs only when it might be probative. Most cases don't have biological evidence and even for those that did, in most older cases the evidence wasn't retained so there' nothing to test.

Before Governor Perry signed this year's new changes into law, Texas' old DNA testing statute did allow prosecutors to object to DNA testing based on some of the grounds Reyna mentions. The problem was, prosecutors like Williamson County DA John Bradley (from whose office Reyna recruited his first assistant because he admired Bradley's shop) used those mechanisms to fight DNA testing tooth and nail even in cases where innocence is plausible, often expending far more time and resources in opposition than would be taken up just by testing the evidence. In the Michael Morton case, Bradley and Co. spent six years opposing DNA testing until the law changed and they had no choice. When the evidence was tested, it turned out Morton was innocent and the guilty man had been running free all this time, most recently living in Bastrop. (Some of the DNA exonerations in Dallas came in cases where the DA who preceded Craig Watkins, Bill Hill, had vigorously opposed DNA testing.)

Because of cases like Morton's - and for that matter like Hank Skinner's, whose request for DNA testing presently sits before the Court of Criminal Appeals following their recent stay of his execution - Texas legislators changed the law. Giving prosecutors so many excuses to oppose DNA testing resulted in unacceptable delays and denials of justice, so the Legislature streamlined the process. Morton turned out to be innocent; if Skinner turns out to be guilty, the new law will have been no less valuable, having ensured everyone can be confident, to the Nth degree, that the state has not executed an innocent man.

Yes, some inevitably will try to game the system, but in reality the number of Ch. 64 DNA cases are diminishing, or soon will be, because so few jurisdictions retained evidence from older cases and so many of those old cases have now been vetted. There are a few remaining caches of old rape kits and other biological evidence to sort through before DNA exonerations become an historical footnote, but to the extent such testing was incorporated more on the front end, those opportunities will arise less and less often.

I've never seen hard data on the results from Ch. 64 motions, but on the morning the bill Reyna is complaining about was heard in committee at the Texas Legislature, I recall speaking to Michael Ware, an attorney who at the time (he's now in private practice) headed the Conviction Integrity Unit for the Dallas District Attorneys office. That division conducted a large-scale review of old DNA cases in conjunction with my employers at the Innocence Project of Texas, and according to Mike, the cases where they commissioned testing came back roughly 1/3 each into three categories: Excluding the defendant as a suspect (i.e., exonerating them), proving their guilt, or inconclusive. So in a majority of Ch. 64 cases, if those estimates can be generalized, you wouldn't see an innocent person walk free. But after debating the issue for years, on the advice of the Tim Cole Advisory Panel on wrongful convictions, the Legislature decided it's worth blowing by critiques like Mr. Reyna's to insist on testing for the sake of people like Mr. Morton who're innocent, imprisoned, and have no other hope for salvation.

In other words, the state for nearly a decade since Chapter 64 first became law has been having the debate Mr. Reyna now wants to engage in. He's just shown up late for the party, after the topic's been vetted and the decisions have already been made. The time for whining, though, is past.

My advice: Now that you've read the law and know (more or less) what it says, Mr. Reyna, just stop issuing press statements about things you don't understand and test the damn evidence.

RELATED: From the Texas Independent, "Despite deadline in new law, few Texas agencies reported count of untested rape kits."

See related Grits posts:

• McLennan DA fights DNA testing because it overrides juries
• DNA testing, innocence claims pursued in 30-year old Lake Waco murders
• New DA in Waco off to rocky start: Announces new hire who's then indicted