Waco DA issues spurious 'guidelines' on post-conviction DNA testing

McLennan County District Attorney Abel Reyna appears to be struggling with the conflict between enforcing the law and promoting his own policy preferences in the courtroom, at least when it comes to DNA testing in the so-called Lake Waco murder cases, which he continues to oppose despite having no legal basis to do so. As Cindy Culp reports in the Waco Tribune Herald (behind paywall), Reyna's stance sets him apart: "In stark opposition to prosecutors in some of Texas’ largest jurisdictions, ... Reyna has no plans to adopt a policy generally supporting prisoners’ requests for DNA testing after conviction," the story opens.

Wrote Culp, "Reyna, who took office in January, said he won’t support testing requests unless a case meets a rigorous set of guidelines."

The problem is, his "guidelines" have no basis in law and in fact contradict a Texas statute passed earlier this year expanding access to post-conviction DNA testing. Quoting my colleague Nick Vilbas from the Innocence Project of Texas, the story described how, in the past, prosecutors who opposed testing "usually [did] so on the grounds that other evidence proved the defendant’s guilt." But the Legislature this year eliminated those grounds as a reason to prevent testing. Instead:

Under current law, inmates can ask for DNA testing if biological evidence in their case has never been tested, regardless of the reason why.

They also can ask for new analysis of previously tested evidence if newer methods that might yield more accurate results have become available since the initial testing.

“The fight shouldn’t be about getting the testing done,” Vilbas said. “The fight should be about what does the testing mean.”

Not only does the DA's opposition have no basis in law, the practical concerns he expressed in the story have no basis in reality: “What does any person who’s ever been pled or been tried have to lose [from requesting testing]?” Reyna said. “McLennan County would probably need another felony district court to just handle (testing) motions.” However, wrote Culp, "That’s not the experience of some of Texas’ largest jurisdictions, where DNA testing requests are generally supported by their offices, prosecutors there said." For example:

Austin’s Travis County, for example, usually gets two to three requests per month. The county has a population of more than 1 million people.

Dallas County — which has a population of 2.4 million people and has had more DNA exonerations than any jurisdiction in the nation — gets fewer than 10 testing requests per month.

Judges in Waco must have pretty light caseloads if that volume would require creating a new district court. These are ignorant comments by someone who was seemingly unaware of the law until recently and now, having read it, wishes to substitute his own policy preferences for those of the Legislature.

Bizarrely, Reyna continues to couch his opposition to testing in the Lake Waco murder case as respect for "jury verdicts," seemingly ignorant of or oblivious to the fact that the case ended in a plea bargain, not a jury trial. In this instance the defendant pled guilty then later recanted, "saying he falsely confessed because his attorneys told him he would almost certainly get the death penalty if he went to trial." In that light, Reyna's commentary about respect for juries comes off as weird and out of context. As Scott Greenfield noted, "the inability to test DNA at the time makes this new evidence, and there's no disrespect to the jury (even if there had been one) or the system's interest in finality when new evidence comes to light."

Bottom line, as I suspect Reyna will learn definitively when the court rules on the pending motion, the new law means it doesn't matter much whether Reyna supports or opposes DNA testing and his "guidelines" are mainly useful as toilet paper: The law no longer includes those caveats and he cannot impose them by fiat.

See related Grits posts:

• McLennan DA wants law changed to restrict post-conviction DNA testing
• 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