Sunday, May 06, 2012

The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors

I was amazed to read that, at Hank Skinner's hearing before the Texas Court of Criminal Appeals seeking DNA testing under Chapter 64 of Texas' Code of Criminal Procedure, the State argued that the Legislature didn't intend to grant relief in situations like this one. In point of fact, and as somebody paid by the Innocence Project of Texas to lobby on behalf of the bill I can say this with certainty: Skinner's case was not only cited in testimony surrounding the bill, his US Supreme Court victory essentially made passage of SB 122 (Ellis/Gallego) expanding access to DNA testing a fait accompli. After that, prosecutors at the capitol seemed to give it up as a lost cause.

In Skinner's federal appeal, the US Supreme Court ruled in his favor to say that if he were denied DNA testing under state law, he could sue under the federal Sec. 1983 civil rights statute (which is especially critical since Texas has no comparable state cause of action for civil rights abuses, though the state does have a special chapter of the Code of Criminal Procedure providing for post-conviction access to DNA testing).

So in the wake of Skinner's US Supreme Court victory, Texas legislators were faced with a choice: They could retain restrictive language insisted upon  by prosecutors in Texas' 2001 DNA testing statute, giving them unilateral grounds for objecting to tests. But if they let prosecutors keep that power, local taxpayers would find themselves on the hook for expensive, time consuming federal civil rights litigation. It was in that context that the Texas Legislature limited prosecutors' discretion to oppose such "Chapter 64" motions, at least when there's a chance it could prove innocence, a move which has already cleared the way for other exonerating DNA testing.

The most famous (notorious?) example may be Williamson County DA John Bradley fighting Michael Morton's DNA testing motion tooth and nail for 6 years before the motion was finally granted and the results cleared Morton's name. Michael Morton was finally granted DNA testing not because John Bradley suddenly saw the light on the road to Damascus, but because the law changed and the grounds on which he'd previously objected to DNA testing under Ch. 64 suddenly vanished. Readers may recall rookie McLennan County DA Abel Reyna had to learn that lesson as well, flat out misunderstanding the law and his own authority before somebody finally explained it to him.

Similarly, consider Kerry Max Cook, a Tylerite who spent 20 years on death row for a 1978 murder, ultimately bartering his freedom for a guilty plea in order to prevent a fourth trial, facing prosecutors who once again said they would seek the death penalty. (Maybe it's happened before, but Grits knows of no other guilty plea to a capital murder where the defendant walked away free essentially for time served - not if responsible prosecutors honestly think them guilty of a heinous act.) At the time Cook went free, DNA testing still a relatively new technology, certainly for East Texas courts and even the Court of Criminal Appeals (this was pre-Roy Criner). Some time later, DNA testing ultimately exonerated him, but never the courts. Even so, as a practical matter Kerry Max Cook couldn't pursue post-conviction DNA testing necessary clear his name formally through the habeas corpus process until recently because of virulent, Bradley-style opposition from a succession of local Smith County DAs. The possibility only glimmered anew after SB 122 stripped away the means by which Smith County prosecutors and judges (in this case kinda the same thing) could prevent him from exposing, with finality and legal certitude, his false conviction as a capital murderer.

So, to return to Mr. Skinner, it's a relief if not a surprise to hear that questioning from the Court of Criminal Appeals seemed to favor liberal access to DNA testing. These quotes were recorded in an account from David Protess at the Huffington Post:
  • Judge Elsa Alcala: " [The evidence against Skinner] is not overwhelming. It's circumstantial... If you had tested this... 10 years ago, we would have had results 10 years ago. "
  • Judge Cathy Cochran: "Why not just lay all this to rest by doing the DNA quickly? We've had some rather embarrassing incidents in the last couple of years." [There have been 47 DNA exonerations in Texas.]
  • Judge Michael Keasler: "Prosecutors should be testing everything... You ought to be absolutely sure before you strap a person down and kill 'em."
Judge Keasler's comments are particularly notable as he more frequently votes with Judges Keller and Hervey on the court's more extremist right wing. Judge Alcala so far ranks among "moderates" on the court, to the extent there is such a thing. Judge Cochran's comment is also notable because she's so often a swing vote among competing conservative factions. Counting heads, if she and Keasler side with Skinner, Grits would offer an educated (perhaps obvious) guess that the ruling will go his way. Reported Brandi Grissom at the Texas Tribune:
Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.

"Prosecutors should be testing everything anyway," Keasler said.
Ouch! That was NOT the response Mr. Mitchell was looking for from Judge Keasler!

Am I saying Hank Skinner is innocent? I have no idea. Will I be surprised if DNA evidence inculpates him? No more than I would if it exculpates. I agree with Judge Cochran that "[The evidence against Skinner] is not overwhelming. It's circumstantial." So why not test? And as the Legislature understood, if the CCA rules against Skinner, the US Supreme Court has said he can file a Sec. 1983 civil rights suit and it's likely a federal judge would order the testing down the line, anyway. That's why, in this non-lawyer's opinion, Skinner's case should be a no-brainer for the Court of Criminal Appeals, not to mention an object lesson for Texas prosecutors on how they approach post-conviction writs and DNA testing going forward.

The worst-case scenario is executing Mr. Skinner, testing posthumously and finding out he didn't do it. Otherwise, if he is really guilty, testing removes all doubt and prevents a great deal of torment and controversy in the future for family and friends of the victim. Since the defense has agreed to pay for testing, at this point there's no good reason, legal or otherwise, not to get it over with. Judging from the media coverage, it sounds like at least five judges on the Court of Criminal Appeals will probably agree.


CLH said...

Really? They haven't learned yet? Dear God, please oh please oh please get me out of this state. I know I could do good here, but I really, really don't want to anymore.

sunray's wench said...

"Prosecutors should be testing everything anyway," Keasler said.

I had to read your post a couple of times, just to be sure we were still in Texas. I wonder for how much longer prosecutors think they will be able to ignore getting the right person in favour of getting the person they want.

Lee said...

They are fighting the DNA testing because the state does not want to exonerate another defendant and then have to pay compensation. The state attorneys would rather slaughter thousands as opposed to pay a single penny to their victims.

Q. Would the state execute someone innocent?
A. They would be slaughtered without a second thought.

Anonymous said...

What exactly does DNA testing cost?

A friend said...

Less than the legal costs of fighting allowing the testing to be done.

Anonymous said...

Does it really matter whether the prosecutor opposes the DNA testing since the the convicting court has the option of granting testing over the prosecutor's objections?

Gritsforbreakfast said...

10:39, it mattered to Michael Morton, didn't it?

It matters more when many criminal court judges are former prosecutors and sometimes (as in Sharon Keller's case) even run as "pro prosecution," which would be similar, e.g., to a family court judge running as "pro-husband" then consistently ruling for that side from the bench.

In that environment, giving prosecutors and courts the "option" to do the right thing wasn't in practice always good enough, whatever theoretical arguments you'd like to make about judicial neutrality, etc.. If the evidence exists and would be probative, it makes more sense just to test it.

Anonymous said...

It seems to me that the Williamson County District Court dropped the ball when it did not order testing over the prosecutor's objections. Other district courts have done so.

Anonymous said...

Okay, so DNA testing costs less than fighting testing and, presumably, it's a good idea to "test everything" regardless of how bloody a crime scene may be. Again, the question I'd love to know the answer to is: How much does DNA testing cost? Can anyone answer that question? Or, in the age of Obama, do we just not give a damn any more about how much any government service might cost the taxpayers?

Anonymous said...

Incidentally, I saw on the news where there was a video of the recent shooting of the Austin police officer in a local Walmart. You know, the one where the two store workers subdued the killer until other officers arrived. I'm sure there's probably some mitochondrial DNA on the weapon, on the officer's clothes and on the killer's clothes. Do y'all think it would be a wise expenditure of the taxpayer's resources to just "test everything?"

Anonymous said...

Glad to see John Bradley posting on Grits....still trying to blame everyone else but himself.

Anonymous said...

Standard STR DNA testing costs on the order of $300-350 per sample at a government lab. That cost factors in staff time, kits & consumables, equipment depreciation, overhead, etc. It costs roughly twice that amount at priviate labs.

Anonymous said...

So how much does it cost to keep an innocent person in prison?

Anonymous said...

Our county primarily uses the DPS lab for DNA testing. Due to backlogs, DPS has enacted limits upon how many samples they will test in the absence of a special request from the DA's office or a court order. Right now, it takes anywhere from 6 months to a year for DNA tests to be completed and results obtained. Grits, what do you think the chances are that the legislature substantially increases the DNA lab budgets for DPS next session now that we need to start testing everything? Will the "test everything" plan extend to property crimes like burglaries and dope cases too? Just wondering how this may all play out.

Anonymous said...

Maybe the lesson/solution here is that the state of Texas needs to stop trying to make every little thing that annoys someone a crime and locking people up for years for stupid crap and focus its resources on serious crimes. I don't have a problem with diverting the resources currently used to arrest, prosecute and incarcerate people for marijuana possesion to DNA testing in rape and murder cases instead. Of course, that might put some narcotics officers out of a job and cut into the extensive business built around pursuing drug crimes.

I guess its a question of priorities. Do we want to continue to expend significant resources on petty, victimless crimes, or do we want to do the right thing and thoroughly investigate serious crimes? This mantra that we can't do the job right because we don't have the money is total BS. The state doesn't mind spending the money on heavily armored boats, fully equipped patrol cars for higher-ups in DPS that have no patrol duties, and many other unneeded items. Prosecutors are using seized drug money to remodel their offices. How about using that seized drug money to do proper testing and make sure you're not sending an innocent person to prison, or to death.

Anonymous said...

Oh, yeah, how about kicking Perry out of his $10,000 a month rent house and using some of that money to make sure justice is being done.

You prosecutors need to quit whining about having to do your job right. Buck up and do the right thing for a change. You are not shy about asking for money for plenty of other things. There is a mountain of evidence that shows that both police and prosecutors have been sloppily and haphazardly doing their jobs for a long, long time. Start doing thorough investigations. Quit jumping to the conclusion that the first suspect has to be right and then hiding and denying any evidence that says different. Learn how to take a crictical, skeptical look at your cases. Quit being lazy and do the work to make sure you're convicting right people. Quit whining about having to do what you should have been doing all along. You people just want to continue being lazy, doing half-ass investigations and then want the courts to protect you from any accountability. Grow up and quit whining just because someone expects you to be thorough when its people lives and freedoms at stake. Come on.

Anonymous said...

To be fair to prosecutors, doing DNA testing on every stain on every piece of evidence in a case has never been part of doing the job right.

Police need to cast a wide net in collecting evidence associated with a crime. That is because there is only a limited time period to do a collection correctly and reliably, and collection is generally completed before there is much investigation done. But that means that lots of evidence collected will either be of no probative value, or will be of less probative value than other evidence.

Take a home invasion rape as a case in point. The rape kit, clothing from the victim, bedding from the victim's home, and other items from a victim's home that may have been handled by the assailant will be collected within hours of the assault. But what is going to need to be DNA tested won't be established until the kit is screened. If there is semen in the kit, then there is probably going to be no value in even screening other items until the DNA testing is completed on the semen from the kit. If the DNA from the semen matches the defendent, then there isn't usually any value in DNA testing clothing or bedding or anything else. The prosecutor could plan for the worst and ask for screening and testing on everything. But that would turn a $1,200 lab bill for the case into a $12,000 lab bill pretty quickly. So the costs would be significantly increased for no benefit, and other lab work that could have been done would be pushed back.

Anonymous said...

That's right, 2:33! Have you ever seen such a spoiled bunch of lawyers? They are all overpaid and underworked! My understanding is that all DA's offices are just rolling in that seized drug money! And doesn't every county have it's own DNA lab? I mean, what could be their excuse? And I agree there's just a MOUNTAIN of evidence out there showing the crappy job Texas prosecutors are doing! , Seriously, we've had what? Maybe 70 exonerations? And I bet there are probably only a MILLION or more criminal cases filed ANNUALY in Texas! That's a HORRIBLE success ratio isn't it? In fact, every prosecutor I know gets a big thrill out of prosecuting the INNOCENT, and not prosecuting the GUILTY! It gives them a tremendous amount of satisfaction to keep their communities UNSAFE! And damned those VICTIMLESS crimes--you mean like the meth cooks whose lab blew up in our county not long ago and burned two children to death? No harm, right?

Anonymous said...

Whine on 6:07, I'm sure there's a guy running around with a bag of weed in his pocket that needs your attention. Go put him away for life and keep society safe.

Anonymous said...

Will do, 4:48. And be sure not to miss your next meeting with your parole officer.

Anonymous said...

Just keep patting yourself and your fellow sleazy prosecutors on the back 6:07. The fact is, alls those MILLION more criminal cases you are so proud about are mostly slam dunks. Yes, most defendants are guilty, obviously so, in fact, most plea. Hell, even some of the innocent ones plea. But, go ahead, give yourselves credit for all the easy ones. Shoot, you guys really have an easy job 90% of the time. However, the fact is, when there is a case that is not clear cut, 9 times out of 10 you guys screw it up. Everything from hiding evidence and witnesses, to stupid police officers taking evidence home, name it. Happens every single day in the state of Texas - incompetence and/or deliberate misconduct. But, you go right ahead, 6:07, keep patting yourself on the back because you usually get the easy ones right. You people are so self deluded, it's a joke. You're nothing but paper pushing beuaracrats who think you're the saviours of society. Give me a break. And yes, I have seen prosecutors who have no qualms about knowingly convicting the innocent. For too many of you guys it ain't got nothing to do with justice. Its about power, that's it.

If you do end up having to test "all" the evidence and it costs the taxpayers a lot of money, who is to blame? The finger of blame points squarely at you and you're brethern. If you hadn't fought testing in every case, even where it was clear there was good reason (see John Bradley and the Morton case), this wouldn't have ever come up, would it? Now, you're whining because you don't want to accept the consequences of your own blind bias and stupidity. Protect convictions (whether just or not) at all costs. That was John Bradley's mantra. That seems to be what we're hearing from prosecutors posting here. No, we can't test, its too expensive...wah wah wah.... How many thousands upon thousands have you guys spent fighting testing to keep innocent people in prison. You weren't whining about the costs then, were you?

It's typical, when prosecutors don't get their way, they always start running around like Chicken Little hollering that the sky is falling. Same thing with doing away with absolute immunity. Guess what, the sky hasn't fallen yet. If the courts start requiring you guys to start doing what the taxpayers actually pay you for, guess what, the sky isn't going to fall. That sky is going to fall crap really gets old and by now few people, even the pro-prosecution judges on the CCA, are no longer paying attention. Give it a rest.

Anonymous said...

6:58, can't get much more narrow-minded than that, can you?

Anyone who opposes what you lazy government beuarcrats say must be a criminal huh? Man, what it must be like to be as smart and insightful as you. (I know you don't recognize it so I'll go ahead and tell you, that's sarcasm). Seriuosly, though, assuming becuase someone disagrees with you they are a criminal is beyond stupid.

Anonymous said...

Apparently prosecutors in Smith County have plenty of time and money. They've got a politically motivated prosecution of a constable going on all because his deputies were working private security, and, although they were employees, the county didn't provid them with health insurance.

Let's see, we've also got sheriff's departments elsewhere in the state getting aerial drones. Hmmm....but we can't afford a little DNA testing.

Back to Smith County, the sheriff and chief deputy drive expensive Denalis, but we can't afford DNA testing.

The state could afford to pay, I don't even know how much, for Rick Perry's security as he traveled the country making a fool of himself as a presidential candidate, but we can't afford DNA testing.

I could go on...

Anonymous said...

So, if it's really not possible for you guys to test every single piece of evidence, maybe this will make you think harder about what you do need to test. Seems like a good thing to me.

Anonymous said...

"And damned those VICTIMLESS crimes--you mean like the meth cooks whose lab blew up in our county not long ago and burned two children to death? No harm, right?"

Yes, 6:07, these children were victims. But, what were they victims of?

Think about it. Why was this guy cooking meth. Presumably, the answer is because he can make a lot of money at it. Why can me make a lot of money at it? Probably because its illegal. Thus, it may very well be that these two children are actually victims of the "war on drugs."

Now, before 6:07 starts making assumptions, let me say, this is coming from someone who has never even tried any illegal substance.

Countries that have taken a more rational approach towards this subject have seen both drug use and crime go down. I don't pretend to know why that is, but maybe we should be thinking about it.

Of course, 6:07 has never had any cause to question this type of thing because he sees himself as a hero in this "war on drugs" and enjoys the power it gives him. He has no reason to ask whether the whole thing is unwise. To do so would threaten his power. To do so would mean that maybe he is not the valiant hero he sees himself to be.

The "war on drugs" is misguided and has claimed many, many innocent victims. It does more damage than good. Even if it were the right approach, look at how much money, time, effort and resources have been expended, and still we didn't prevent the deaths of those children, did we? It's time to admit that the "war on drugs" is misguided. But, some will never see that because they are blinded by the power it gives them.

Think about this, 6:07. Suppose we knew how much it would cost to do all the necessary DNA testing. You would object to spending all that money, right? But, suppose someone proposed spending the same amount of money on the war on drugs. I have no doubt you'd support that idea 100%. If I'm right about that, you need to be asking yourself is justice really what motivates you.