The Attorney General's decision to cease opposing post-conviction DNA testing in Hank Skinner's case may finally put to rest the prosecutorial hubris displayed in a handful of jurisdictions since the Legislature expanded access to testing last year. After it became clear at a May hearing that judges on the Court of Criminal Appeals were likely side with Mr. Skinner, the AG "did an abrupt about-face and ended its years of objection to DNA testing," said the Fort Worth Star-Telegram.
In cases like Skinner's, Kerry Max Cook's, and the Lake Waco murders, where McLennan County DA Abel Reyna has vigorously opposed DNA testing, some prosecutors seemingly could not wrap their head around the new law after it passed the Texas Lege last year (as SB 122 by Ellis). Now, when DNA evidence might be probative, prosecutors basically have lost most grounds for objection: There were too many instances - particularly in Dallas - where prosecutors objected for years and when testing was finally done it revealed new innocence cases. But quite a few prosecutors ignored the new statute and continued to object to testing.
The Skinner case, had the AG not changed course, was poised to settle the issue as a legal matter. Since they backed down before a decision, there's still no precedent formally interpreting the new law. But it's pretty clear the current CCA understood the implications of the change and were prepared to honor it. This debate is now over, even if DAs from Smith and McLennan County don't realize it yet.
Grits has no opinion on Skinner's likely innocence or guilt. As Judge Elsa Alcala said at that May hearing, the evidence is "not overwhelming; it's circumstantial," and DNA has sometimes proven men innocent when circumstantial evidence seemed overwhelming. You simply don't know for sure until you test the DNA, which was the whole point of the new statute in the first place.
RELATED: See, "The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors."
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I saw yesterday where the governor recommended that state agencies begin the process of identifying 10% of their budgets to cut in anticipation of the next legislative session. Presumably, this will include the DPS Crime Labs which are already backlogged. In the last couple of years, DPS began imposing limitations on how many evidentiary items from different kinds of crime scenes it would test. These budgetary constraints seem to be on a collision course with the philosophy espoused recently by Judge Keasler of the Court of Criminal Appeals that prosecutors should just "test everything."
My guess is that in Skinner (and the overwhelming majority of post-conviction DNA testing cases) the conviction will be upheld. Now Grits and others like him will argue "if it overturns just one wrongful conviction it will be money well spent." Okay, that sounds reasonable. But at what cost? We're already debating the wisdom of spending money on "end of life care" for senior citizens who've never been convicted of any crime. I do wonder if there will come a time when taxpayers begin to question the wisdom of allowing never ending DNA testing to occur for individuals who have already had a jury trial and multiple appeals--particularly when the schools our children are attending are competing for the same dollars. To paraphrase an old saying from my grandpa, it seems that we're wanting to have "champagne post-conviction forensic testing on a beer budget."
actualy this right here was why he backed down!
"The Skinner case, had the AG not changed course, was poised to settle the issue as a legal matter. Since they backed down before a decision, there's still no precedent formally interpreting the new law. But it's pretty clear the current CCA understood the implications of the change and were prepared to honor it."
If someone could read his mails...i'm sure you would find a lot from other DA's running to the turn of
"listen you shit! your about of mess it up for ALL of us!"
Last thing they need is a LEGAL COURT ORDER that states they are breaking the law when they hold up testing!
anon 9:24--it's my understanding that the Skinner team offered to pay for the tests. Two possible scenarios for Skinner's DNA testing:
(1) it will exonerated him, in which case the state can say, "See, the system works." A win for the state.
(2) it could prove Skinner was the guy,in which case the state can say, "See, we had it right all the time." Win for the state.
anon 2:24, how much is too much to spend to avoid executing an innocent person? You're guessing that Skinner's conviction will be upheld. You're guessing! Guessing is not good enough when someone's life is at stake.
My understanding is that in Skinner, there was originally DNA testing done which implicated him in the crime. There was additional DNA testing which could have been done but his lawyers decided not to pursue that. Now, after he was found guilty by the jury and all of his appeals have been exhausted, he wants to go back and have testing done which could have been done originally. Under those circumstances, I think most people would tend to believe that the jury got it right. Moreover, I think most people would feel that Skinner is simply trying to "game" the system and prolong the inevitable. This has become fairly common practice among death row offenders and I think the public realizes it.
Just an observation.
Not all prosecutors in the State of Texas are Neanderthals who will win at all costs. John Bradley, et.al., have given prosecutors a very bad name. But, let's put it into perspective.
Every statistical study has shown the error rate in convictions to be less than 1 per cent. Even the most ardent supporter of the Innocence Project will tell you that MANY guilty prisoners sign up for their help - fortunately, they are screened out.
One can point to the handful of unfortunate cases where innocent people have been convicted and indict the entire system. Prosecutors are made out to be "jack booted government thugs", whose only desire is to send someone to prison, no matter what.
If any of the critics of the various District Attorneys and their staffs would spend a day or two "tagging along" with a prosecutor, they would find dedicated men and women who take their job seriously, who are grossly underpaid for their talent (why does a careeer prosecutor with 25 years of experience make about 1/3 to 1/2 of what a first year associate in a medium sized civil firm makes?), and who are under immense pressure from the citizenry to fight crime.
I agree that some victimless crimes (such as maijuana possession) need to go the way of the dodo. The Republican legislature (and governor), however, increasingly criminalize "annoying" conduct, and make the penalties so severe that prosecutors' hands are often tied.
Add to this ever decreasing budgets, and it is no wonder that prosecutors simply can't do the job they would like to do. Look at some jurisdictions in California - they don't even prosecute misdemeanors because they don't have the manpower or other resources to do it. Texas is headed that way.
We have a right to demand vigilance, fairness, and a sense of justice from our prosecutors. But, let's not make demands without giving them the tools they need to meet those demands.
If they wanted a new sample of DNA, all they'd have to do is get that cell phone he tried to hide by shoving it up his ass.
"The Republican legislature (and governor), however, increasingly criminalize "annoying" conduct, and make the penalties so severe that prosecutors' hands are often tied."
Okay, why is it that I've never heard prosecutors oppose those laws or increased penalties? Prosecutors are always advocating for more criminal laws and increased penalties. Apparently, they don't already have enough to do. When I start hearing the TDCAA calling for repeal of those criminal laws that criminalize merely annoying conduct, I'll take your comments seriuosly. Until then...
9:24 - It seems to me that you are saying that we cannot afford justice. I find that troubling. The state can find money for many, many, many frivilous things. Justice isn't frivolous or a luxury. If we are going to criminalize everything, then we have an obligation to make sure we are convicting the guilty. You're efforts to minimize the actual innocence cases show a complete disregard for the concept of justice. Apparently, you feel that a certain number of wrongful convictions is acceptable. Okay, if it is not such a big deal to send an innocent person to death row- why don't you volunteer to be one of those. But, you don't think you could ever become a victim of the system. You think you are above all that. You may not admit it but I'm sure, in your mind, you think even those who have been wrongly convicted probably deserve it somehow. Lets see you volunteer to go spend 20 years on death row and see how insignificant you think the problem is then.
I find it quite incredible that you glibly refer to justice as a luxure that we cannot afford. If that is what we believe, that says something very troubling about our society as well as you personally. It used to be said taht it was better than 100 guilty men go free than 1 innocent person go to prison. Now, the attitude is that it is better thatn 1000 innocent men spend decades of their lives in prison just so we don't take any chance that a single guilty person will go free.
You are completely deluded if you think the system isn't seriously flawed. The evidence is strking. Yet, you willfully turn a blind eye.
"Now Grits and others like him will argue "if it overturns just one wrongful conviction it will be money well spent." Okay, that sounds reasonable. But at what cost?"
Everything has a cost. That comment shows a complete lack of concern for your fellow man. Someone who can make such a statement; basically saying "I don't care if my neighbor spends decades of his life in prison for something he didn't do, as long as that doesn't happen too often, or happen to me or someone I care about." What a callous and cold person you must be.
People used to look out for each other, care about each other. Now, its just every man for himself. I assume that you work in the system probably a prosecutor. Your aim is to protect your turf, your power, to defend the system that gives you that power - to hell with any innocents that may suffer at the hands of your system. Unfortunately, this attitude is all too common - it truly scares me for the future of our society. We already resemble the communist governments of a few decades ago in many ways. How much worse will it get.
From what I understand, a lot of people disapeared under Stalin's government. I'm sure the number was relatively small, probalby much less than 1% of the population. I'm sure that there were those who thought that was an acceptable price to maintaing the government and that it was done to benefit the citizens. So, if one had argued against those things, one might have asked what the cost would be of allowing those people to reamin in society. After all, we were only talking about a few people who probably deserved what they got anyway. Had they been allowed to remain in society they would have been a threat to the government and, of course, the people. So, they could have been left alone, but (as you ask in your comments) "at what cost?
Hey 9:24, you seem very concerned about the state's budget problems -So, I assume you intend to speak out about all the wasteful spending such as the $10,000 per month rent for Perry's house, the money spent on his security when he was traveling around the country campaigning, the fully equipped patrol cars driven by higher ups in DPS who have no patrol duties, and all the other wasteful spending that occurs on a daily basis. How about we just reduce the number of prosecutors and require them to focus on the serious stuff. It seems that all the police departments have gotten new cars in the last couple of years - haven't heard you complain we couldn't afford that. Someone on here commented a while back that there were a bunch of positions DPS was unable to fill. Why not just cut those - seems to me there's enough highway patrol officers out there - I'm sure you agree that we just can't afford all of these things. How about cutting some of the legislative perks and staff - after all we can't afford a "champagne legislature on a beer budge" or "champagne police departments on a beer budget" - of course I'm sure we can afford champagne for Perry's rented mansion. Oh, what about those heavily armed boats DPS just got - how much did those cost - "champagne boats on a beer budget." I could go on and on...
Again, justice isn't a luxury. This state splurges on a lot of luxuries and those won't be cut. If the right people want something, even it is a luxury, they will get it. Again, justice isn't a luxury. The government doesn't know what a "beer budget" is.
For those of you advocating a "spare no expense" system of post-conviction relief under the auspices of "justice," you don't need to be ranting at me on this forum. You need to be writing your legislators. Tell them how you'd prefer that tax dollars be spent paying for infinite appeals and forensic testing for convicted criminals rather than paying for more officers on the street, or health care for the elderly, or higher teacher salaries, or lower college tuition, etc. You saw what happened last night in Wisconsin. The public, especially in Texas, feels pretty much tapped out. I couldn't agree with you more that some of the luxuries our politicians have become accustomed to are no longer affordable. But I can assure you of one thing: spending more money on convicted criminals--other than to lock them up--is not a huge public priority in this state. This is not my opinion and I'm not saying it's right. It's just a fact of life in Texas. Increasing a line item in the state budget for post-conviction DNA testing is not going to get any legislator a bunch of votes. Period. End of story. The kind of "justice" some of you seem to be advocating is a luxury the public is quite simply unwilling to pay for. In fact, it's an issue that's not even on the public radar until crime rates start to go back up again--and then they will quickly start to pay attention--but not in the way you want.
If the truth be known, I think what some of you are really seeking is a system that is so expensive on the back end--that costs the taxpayers so much- that criminals just won't be prosecuted at all. You're not worried about innocent people being prosecuted. You want to make it cost prohibitive for GUILTY people to be prosecuted. And hell, if I were a criminal or a supporter of criminals, I'd want the same thing! This is what death penalty opponents have been trying do for years--to make it so expensive to obtain the death penalty that the state would just quit trying. In fact, that was one of the principal selling points for the whole life without parole law. It costs to much to get the death penalty.
I'm sure prosecutors would love to be able to obtain limitless DNA testing on the FRONT end. It would be great. It would just make cases easier to prove. Unfortunately, prosecutors don't get to have everything they want either. The legislature pays the bills. And I'm afraid in this instance, when it it comes down to it, there won't be a penny more allocated to the crime labs for additional DNA testing than there was in the last bienneum. More likely, there will be even less.
"If the truth be known, I think what some of you are really seeking is a system that is so expensive on the back end--that costs the taxpayers so much- that criminals just won't be prosecuted at all. You're not worried about innocent people being prosecuted. You want to make it cost prohibitive for GUILTY people to be prosecuted. And hell, if I were a criminal or a supporter of criminals, I'd want the same thing!"
Are you serious? Can you really equate wanting to minimize punnishing the innocent to wanting to avoid punishing the guilty?
Look, the simple fact is this. Texas wants to execute people. Fine. But if you're going to do that a reasonable doubt standard isn't good enougn - Lord knows Texas has shown itself to be too frequently unable to distinguish between the innocent and the guilty. With the human mistakes and misconduct (and yes, it's both) that has been demonstrated to be embedded in the system, we need to achieve near certainty if we're going to continue to engage in state-performed killings. Otherwise we're for sure going to kill some more innocent folks.
Easy for you to disagree with that because you don't think it'll ever happen to you. I don't think it'll ever happen to me, either. But I'm sure that DeLuna, Cantu, Spence, and (maybe) Willingham thought the same thing right up until the moment it happened to them.
"The kind of "justice" some of you seem to be advocating is a luxury the public is quite simply unwilling to pay for."
Justice doesn't come in different varieties. There aren't diffrent "kinds" of justice. It is either justice or it isn't. It's that simple. Sending an innocent person to prison is not justice, it is injustice.
Justice means getting it right. I admit that no system will ever be perfect because man is not perfect. But, when there is a plane crash we don't just say, oh well, it costs too much to investigate the cause and try to prevent them, so, since they are pretty rare we'll just do nothing. No, when there is a plan crash we investigate to determine the cause and take steps to try to prevent future crashes. Why do people oppose doing that when it comes to criminal justice?
And, contrary to the assertions of some, the system gets it wrong far too often. There is significant room for improvement. Some simply don't want the system to be better. They are happy with the status quo.
There is only one kind of "justice." Justice means we get it right. Anything less is injustice (not simply a different kind of justice).
If the public is unwilling pay for justice, what does that say about the public?
If you're right, and the public is really unwilling to pay for justice, that says that the public doesn't believe in things like freedom, due process, individual rights, or the constitution. A lot of good men have died to protect those things. If you are right and the public really is unwilling to spend a few measly dollars for justice, then the sacrifices of those men were truly in vain.
Moreover, I think most people would feel that Skinner is simply trying to "game" the system and prolong the inevitable. This has become fairly common practice among death row offenders and I think the public realizes it.
=================================
The problem with this argument is that they could have agreed to test the DNA 10 years ago then execute him 9 years ago with a clear conscience.
Or Skinner and his lawyers could have requested the testing themselves at the time of his original trial---except they knew what it would likely show. Now he's just trying to prolong the inevitable. In any event, it looks like the test is going to be done. If it turns out that it all belongs to Skinnner, it will bring to mind the story of the boy who cried wolf.
"If it turns out that it all belongs to Skinnner, it will bring to mind the story of the boy who cried wolf."
And if it does NOT belong to Skinner, you'll be the first to man up, give us your name, and say you were wrong, won't you? No? Shocking!
As the post said, I don't know and you don't know. When the test is done, we'll know.
The comments about the public being "unwilling to pay" the costs of justice are BS. The defense has said they would pay for testing! Besides, if Skinner is really guilty, it would have been a LOT cheaper for taxpayers if the state agreed to testing 10 years ago and was done with it. That's an incredibly weak and disingenuous argument.
"Or Skinner and his lawyers could have requested the testing themselves at the time of his original trial---except they knew what it would likely show."
Skinner says he asked and his lawyer (Harold Comer) recommended against it and refused to do so. Of course, his lawyer was a former prosecutor who had prosecuted Skinner and was appointed in a brother-in-law deal by the judge so that his friend Comer could pay his tax bill generated by his having embezzled seized drug money.
Nothing like a little taint on a capital murder trial.
I don't have a strong opinion as to whether Skinner did it or not. When you read these stories, sometimes it's as plain as the nose on your face that the guy is innocent (Morton, Graves, DeLuna)and sometimes it ain't. Truth be told, Skinner probably doesn't know either, if he was as stoned as it appears he was at the time of the crime. There's enough taint here that the items ought to be tested and let's see what information is generated....
To those griping about the cost of a DNA test, how much to feed, cloth and care for an inmate just one more year?
RE:
Anonymous said...
Okay, why is it that I've never heard prosecutors oppose those laws or increased penalties? Prosecutors are always advocating for more criminal laws and increased penalties. Apparently, they don't already have enough to do. When I start hearing the TDCAA calling for repeal of those criminal laws that criminalize merely annoying conduct, I'll take your comments seriuosly. Until then...
6/06/2012 12:20:00 PM
I don't make or respond to anonymous comments (for many of the reasons that Grits complains about, and for which we don't permit them on our forum), but if I did, I'd call b.s. on this uninformed complaint. Ask TPPF, TCJC, Grits himself, or any number of people at the Capitol for verification. I've personally given multiple presentations on the problems of overcriminalization.
But again, why waste time responding to something that the author won't even claim as his/her own? Only cowards call out or criticize other people from behind a curtain.
This is basically what I scrolled down to say.
Shannon, you have definitely given presentations on "overcriminalization" that I almost entirely agreed with. But what you DON'T do is oppose specific enhancements, new crimes, etc., when the group's opposition would matter a lot if you did.
I'll give you full credit for understanding the problem far better than most, my friend, but we must also acknowledge that you don't always step up to the plate when it's time to try to solve it.
"Justice doesn't come in different varieties. There aren't diffrent "kinds" of justice."
That depends on how much "justice" you can afford. How many rich people are on Death Row ?
I really don't see how anybody can put a $ value on someones life. In my opinion, people on death row, who are going to lose their life otherwise, should be given every opportunity to prove their innocence. Put yourself in their shoes, you knew that something could save your life - but because you can only test 2 items, and the 3rd item has the evidence - oh well.. Too bad, to the death chamber you go?
Texas especially are so worried about their reputation and pride hat they fly people through their appeals and dont admit their wrong even when they are. Bottom line as i said before, i think every stone should be overturned before you put someone to death.
The statistics of convictions being overturned is so low because the convicted arent given a fair opportunity from unbias parties, like yourself who obviously care more about money than lives. Clinton Lee Young, another caring loving man on Texas death row - has ballistic evidence that can prove his innocence... But he has been 'procedurely barred' from admittingthis evidence. Why? It must cost too much for texas to look at some paperwork now? Is that what its coming too? He should be given the opportunity to admit that evidence to a court. On top of that, all the money he raises to do testing and investigations himself so that state doesnt have to - THEY SEIZE IT!! so if the state wont pay for it and wont let the 'convicted' pay for it, what hope do they have? I think its absolutely ridiculous that you cant see how people with such closed minds like yourself are the ones who support the people opposing things like this.. Yet, you then say 'its not my opinion and i dont think its right'. You seem to have some very strong beliefs on the
Matter for someone who doesnt think its right? By the way, im from australia. I dont even live in america and even i can see how messed up your justice system is, which is why i choose to stand up for the people who arent allowed to fight for their own lives. Also - if you were pulled over and say you were accused of drink driving, the machine supports the accusation because it has a fault, and you are convicted
And put in jail. I can assure you that you would be fighting for justice. You would want to do whatever you can to make sure it didnt happen again - so why cant we do that for the people whos lives are at stake?
BTW, Shanon, the way your site protected John Bradley by deleting his comments that may have later embarassed him was truly shameful. That wasn't just cowardly but downright dishonest.
Why not make it a first degree felony punishable by prison time, heavy fines and lose of law license if it is found that a prosecutor "knowingly" prosecutes an innocent person. Ha, Ha, Ha! Psych! You know damn well those clowns in the TX legislature would never pass such a law but would'nt that stop prosecutors from these types shanagans?---Just wishful thinking.
Grits, there have have been several instances over the years where Texas prosecutors have opposed increased sentences and, more especially, increases in mandatory minimum punishments. Jessica's law which was passed a couple of sessions back is just one example. The original version of that legislation had some fairly draconian sentences which prosecutors actively opposed. Let session, a number of Texas prosecutors also actively supported the creation of a deferred adjudication option for first time DWI offenders, but that ultimately didn't get passed. Most Texas prosecutors also feel that the Gambling provision of the Penal Code is a piece of crap and have been begging the legislature for years to clean up that statute. I don't know of any prosecutor who enjoys prosecuting gambling cases. With that said, I think if you took a poll of Texas prosecutors, you would find that there is a near consensus that it would be really nice if the Legislature would just quit jacking with the Penal Code and leave it alone.
Shannon, you have definitely given presentations on "overcriminalization" that I almost entirely agreed with. But what you DON'T do is oppose specific enhancements, new crimes, etc., when the group's opposition would matter a lot if you did.
Thanks, Grits--I think. But don't confuse what my job is with what you think it should be. My job is not to save legislators from themselves (unless they ask for that help). Therefore, I (and most of our members) don't go out of the way to complain about bad bills--if I did, I wouldn't have any time to do my real job.
If a legislator asks me my opinion about a new crime/enhancement, I will give them the unvarnished truth. (Just ask any legislator who has called us about filing that silly "Caylee's Law" for verification.) Unfortunately, many of them know the answer ahead of time and have stopped asking.
Shannon - Common Sense was originally published anonymously. So, I guess in your opinion, Thomas Payne was a coward.
What is truly cowardice is the way you deleted the comments on your site from an anonymous poster who was critical of the handling of the Morton case. Why are you and your colleagues so afraid of those comments.
There are good reasons to allow anonymous posts. Some people would not comment otherwise for fear of repercussions. We have seen time and again on this site how prosecutors direct significant hostility at those who disagree with them. Prosecutors come on her labeling those who disagree with them as criminals, supporters of child molesters, etc. Anonimity allows people to express themselves without fear of reprisal. This is really something that your site needs. But, I've noticed that prosecutors aren't big on dissention, free speech, or freedom of thought.
Banning anonymous posts would stifle open and honest debate (see the TDCAA website, for example). Its the substance of the comments that matter, not necessarily who they are coming from. It seems to be that you and your colleagues fear the substance of some comments.
Also, deleting comments by John Bradley that may have hurt him later politically was truly shameful. That wasn't cowardice, it was downright dishonest.
You used the fact that a post was anonymous as an EXCUSE to delete it because it made some very good and valid points that you were unable to rebut. Are you now using the same EXCUSE to justify the failure to provide specifics.
I suppose I could adopt a pseudonym. Wait, don't you allow those on your site? What's the difference in that and being anonymous? A pseudonym doesn't necessarily identify the person any more than being anonymous does. Hmmmm...yet another indication that the anonmymous thing is just an EXCUSE that you cowardly hide behind.
Futhermore, your fellow prosecutor to whom I was responding posted anonymously. I guess, therefore, you are labeling him as a coward also. Or could it be that you think its okay for him or her to post anonymously because they are a prosecutor - I know double standards are popular with prosecutors.
Shannon Edmonds,
I don't post anonymously...and openly and aggressively attacked John Bradley for his crimes of not enforcing Texas Penal Code Section 25.03 (Interference with Child Custody) in Williamson County.
Bradley went so far as to "instruct" law enforcement officers to LIE to the public and tell them it is not a crime but civil....and they should "hire an attorney and take it back to Court civilly".
This is of course done to generate fees for "family bar" attorneys since even the most token enforcement ( and arrest and trip to jail) would stop the problem dead in it's tracks.
So why do I go on with this to YOU? Because from what I have been able to determine prosecutors across Texas do the same damn thing...with very rare exceptions!
Shame on each and every one of you! You destroy families because you are too evil and corrupt to have the Police tell the Perp it is a Felony and arrest if they do not immediately release the kid(s) and tell them it better never happen again or it is straight to jail!
This is why I personally have nothing but contempt for Prosecutors, family law attorneys and the Judges who have to know what is going on every time a desperate parent is before them seeking contempt on the other parent.
In short, whey doesn't the "Judge" tell the litigant "march right over to the District Attorneys office and file a felony complaint?!!! Or the same "Judge" could start the process as a Magistrate and take the complaint right there!
Answer is that the overwhelming majority of you are evil little shysters that don't mind making money off of injustice!
Daniel Simon
512-228-9416
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