Should Texas create a statewide public defender for forensic writs?

Texas should consider creating a statewide public defender office to handle habeas corpus writs related to flawed forensics, an adviser to Gov. Rick Perry told the Court of Criminal Appeals' Criminal Justice Integrity Unit Thursday afternoon.

Judge Barbara Hervey convened the meeting to discuss "Notification in the wake of an 'irregularity' in a criminal case," a reference to forensic snafus like the Jonathan Salvador fiasco and the ongoing hair and fiber review by the Forensic Science Commission. Out of those situations, the question arises, how should affected parties be notified of large-scale forensic errors and who should represent defendants in the habeas corpus process? (See Grits coverage of a "white paper" on the topic from the integrity unit and the Forensic Science Commission published last year.)

It's impossible to rely on defendants' original attorneys, most participants agreed, particularly in older cases and where lawyers represented them on an appointed basis, often for just a few hundred dollars. And even if you're able to find defendants and notify them, without representation that won't get their cases re-opened.

At present, these decisions are made on a completely ad hoc basis. In the Jonathan Salvador situation, which involved cases in more than 30 counties, judges in some jurisdictions appointed habeas counsel in every affected case while, in others, it's unclear if defendants were even notified and for most, counsel was never appointed.

Regular readers know Grits considers this one of the most vexing issues facing the criminal justice system. In the wake of the 2009 National Academy of Sciences report calling into question the scientific basis for many traditional forensic disciplines, it's clear this issue isn't just a one-off related to Jonathan Salvador, arson cases or hair-and-fiber cases but is something that will come up again and again over the next decade or two. But Texas and other states, and for that matter the feds, don't have systems in place to deal with correcting errors in old cases, Judge Hervey told the packed courtroom today.

This is uncharted territory and nobody has a clear idea how to handle such situations or what mechanisms should be created to process such cases en masse. In the Salvador case, potentially hundreds or even thousands of cases were processed based on analyses by a discredited lab analyst, but the evidence is now unavailable to be retested. The Court of Criminal Appeals has ruled that Salvador's work should be presumed invalid, but said the presumption could be rebutted by new testing or additional evidence. But outside of Harris and Galveston counties, few such cases are going forward and there's no standardized process for how to deal with them.

Integrity unit member Mary Ann Wiley from the governor's office surprised many in the room by suggesting that the state should consider creating a public defender office to handle such writs modeled on the successful Office of Capital Writs that handles habeas corpus in indigent death-penalty cases. That would solve a ton of problems, centralizing the process and guaranteeing someone takes responsibility for notifying defendants and filing habeas corpus writs where appropriate.

Indeed, there's an argument that a public defender for writs is needed for cases beyond just forensic issues. Bob Wicoff of the Harris County Public Defender Office pointed out the need for writ representation to challenge convictions based on the recently-deemed-unconstitutional online solicitation of a minor statute. And Judge Hervey pointed out that there could be Brady issues where large-scale notice and representation may be needed.

Few criminal defense lawyers have experience with habeas corpus processes and the Court of Criminal Appeals is all but overwhelmed with the volume of writs they receive, mostly from pro se (self-represented) prisoners, often hand-written and inexpertly crafted. Professionalizing that process would be a boon on many fronts. It may be politically impractical to provide a public defender for all habeas writs, but for situations affecting multiple defendants, whether over forensic issues, Brady violations, or other large-scale "irregularities," or it makes a lot of sense.

Today's meeting was one of the most productive, probative sessions of the CCA's integrity unit I've attended, which is nearly all of them. Judge Hervey got a good group together and led a meaningful discussion that could result in real change down the line. Texas is way ahead of other states on this topic, as far as I can tell, and this meeting offered some meaty suggestions for the Legislature to consider when it convenes again in 2015.