Habeas reform at the Texas Legislature: The backstory

At the Texas Bar Journal, Harris County criminal defense attorney Brian Wice has a short essay (pdf) describing his involvement in the passage of SB 344 by Sen. John Whitmire expanding access to habeas corpus writs for prisoners convicted based on junk science. In a nutshell, the bill says prisoners may be granted relief if new science contradicts expert testimony presented by the prosecution at trial to such an extent that, by a preponderance of the evidence (i.e,. a greater than 50% probability), the defendant would not have been convicted without the erroneous testimony.

'Mr. Wice Goes to Austin'
In the article, Mr. Wice informed us that his "degree of enthusiasm for participating in the legislative process on any level was akin to watching a Here Comes Honey Boo Boo marathon on TLC." But IMO he was overly self deprecating in the piece about minor hiccups during his testimony, which I thought was quite effective- especially because Wice tag teamed at the committee hearing with former Montgomery County District Attorney Michael McDougal, who'd been on the other side of a murder case involving a defendant named Neal Robbins where false, expert testimony helped secure a conviction. It was quite powerful to have both the prosecutor and defense attorney in the case saying the Court of Criminal Appeals majority had denied Mr. Robbins justice. Wice said his reticence about the legislative process:

changed with a late-spring phone call from Amarillo criminal lawyer Jeff Blackburn, founder and chief counsel of the Innocence Project of Texas. Blackburn, Gary Udashen, a top-notch Dallas criminal lawyer, and Scott Henson, an Austin lobbyist and author of the critically acclaimed blog “Grits for Breakfast,” had drafted Senate Bill 344, which would ensure access to the courts for defendants convicted on junk science, including those whose initial post-conviction writs had been rejected. S.B. 344, part of the 83rd Legislature’s laudable attempt at reducing the specter of wrongful convictions — highlighted by S.B. 1611, otherwise known as the Michael Morton Act, which required prosecutors to open all of their files to the defense during pre-trial discovery—provided that a defendant could obtain relief by a showing of a preponderance of the evidence that scientific evidence essential to his conviction had been “contradicted” by relevant scientific evidence that was unavailable at his trial. Almost identical versions of S.B. 344 made it out of committee the past two legislative sessions but died in the final days of those chaotic conclaves. Blackburn wanted to know if I would drive in from Houston for the day and testify in support of the bill.

Blackburn’s call was no coincidence. He knew that I had suffered a bitter defeat two years earlier when the Court of Criminal Appeals, by a vote of 5-4, had denied a new trial for Neal Robbins, who was serving a life sentence for the 1998 capital murder of a young child in Montgomery County. The bare majority rejected the recommendation of the trial judge, veteran jurist K. Michael Mayes, that a new trial was warranted because the state’s key witness, Dr. Patricia Moore, the assistant medical examiner who performed the autopsy, had re-evaluated her trial testimony and concluded, based on the additional five years of training and experience she had acquired, that the cause and manner of death should have been ruled “undetermined” and not “homicide.” Notably, Moore’s expert opinions had been jettisoned by her superiors in Robbins and a number of other cases involving the deaths of young children. What made the Robbins decision even more caustic was that 18 months later, an almost identical CCA majority granted a new trial to Cathy Henderson, sentenced to death for the 1994 capital murder of an infant in Travis County, because the state’s medical expert re-evaluated his opinion as to the cause and manner of death based on a change in the underlying science.

Given that the factual distinction between Robbins and Henderson was one without a meaningful difference — especially to the jurors who convicted Robbins on expert testimony that the expert herself had disavowed — reasonable minds can differ as to whether the Robbins’ majority was wrong. I believe, with all due respect, they were a little weak on being right. My job was to convince the committee that S.B. 344 crafted a workable standard that would bring order to the stark disconnect between Robbins and Henderson.

Ultimately Wice, McDougal, et. al. convinced the committee and the Lege approved SB 344, which goes into effect on September 1st. I should also mention my appreciation that Justin Wood, the lobbyist for the Harris County DA's office this year, worked amicably to nail down the bill language. After that office stonewalled us the prior two sessions, erecting every obstacle they could to keep this bill from passing, Justin's forthrightness and accessibility came as a welcome change of pace.

Habeas corpus vs. legislatures
Helping pass SB 344 on behalf of the Innocence Project of Texas ranked among my proudest moments as an advocate. As a result of this effort, which for me began back in 2008, over the past several years your correspondent has spent more time studying and thinking about habeas corpus writs than I could ever have imagined (or desired). In particular, I've learned that most of the idealized public impressions - and even the impressions of attorneys, for that matter, since scarce few of them will ever file a habeas writ - don't really comport with how the process functions on the ground.

There are several axes around which these misconceptions occur. For example, nearly all analyses of habeas center around the federal writ (Guantanamo Bay, etc.), but most prisoners (around 93%) are incarcerated in state systems and the examination of state-level habeas processes like those in Ex Parte Robbins are mostly ignored in policy debates. Also, this is another area where myopic focus on writs in death penalty cases (which by law must receive federal habeas review, even in state-level cases) has distorted discussions as awkwardly as a reflection in a fun-house mirror. Neal Robbins was not on death row so there was no culture-war circus surrounding the case, which is perhaps one of the reasons the Lege could effectively confront the underlying issues.

In his outstanding history, Habeas Corpus: From England to Empire, Paul Halliday dispelled the myth that habeas corpus is a "right" of individuals the way the First Amendment protects free speech rights or the Fourth Amendment (in theory) protects one's right against unreasonable searches and seizures. He argued definitively that habeas is and always has been a prerogative of the state - in its origin, in fact, the prerogative of kings. Habeas issues don't fall out along partisan lines. Instead, they arise from power struggles between the executive and judicial branches. Lamentably, the former tends to prevail whenever such controversies reach legislative bodies.

In its heyday, Halliday showed, habeas was used far more sweepingly and in a much greater variety of cases than the modern legal system would ever contemplate, in contexts both laudable and lamentable, from freeing abused women being held against their will by their husbands to justifying or thwarting detention of political prisoners to cases involving escaped slaves (in Britain, sometimes, to free them; in the US, usually to return them to their masters).

Halliday's book, though, demonstrated how the historical arc of legislative action regarding habeas has focused on limiting its use. When legislative bodies, state or federal, engage in habeas "reform," the change nearly always limits the writ's use rather than expand it. That's why SB 344 stands out as a singular accomplishment, flying in the face of legislative trends going back not just decades but centuries.

I'm thankful Mssrs. Wice and McDougal came to Austin and hope Brian sharing the experience encourages attorneys, and the Texas Legislature, to continue to bolster the flagging "Great Writ."