Years long battle between Lege and courts continues over access to post-conviction DNA testing

For a decade and a half we've seen a similar dynamic on DNA testing. The Court of Criminal Appeals issued a bad decision (e.g., the Roy Criner case launched the whole modern DNA testing trend in Texas). The Legislature acted to correct their overreach, creating Chapter 64 of the Code of Criminal Procedure to establish a procedure for access to DNA testing. In response, prosecutors scheme and fight to the bitter end to prevent DNA testing at all costs and the courts interpret their power to oppose it broadly. So the Legislature expanded access to testing to overturn their victories, most prominently upending former Williamson County DA John Bradley's years-long opposition to DNA testing in the Michael Morton case.

Now, in response to another questionable Court of Criminal Appeals opinion limiting access to DNA testing, state Rep. Rodney Ellis has yet another bill to expand access to DNA testing, with Michael Morton at his side at the capitol to promote it. See also coverage from the Texas Tribune and the Austin Statesman. Find the text of Ellis' press release below the jump.

For Immediate Release

February 9, 2015

Sen. Ellis, DNA exoneree Michael Morton, and advocates push for stronger DNA testing law

(Austin, TX) // Michael Morton, who served 25 years in prison for murder until DNA evidence proved his innocence, joined Sen. Rodney Ellis (D-Houston), Nina Morrison, Senior Staff Attorney at the Innocence Project, and Michelle Feldman, an Innocence Project State Policy Advocate, at the Capitol today to urge the passage of SB 487, legislation to improve access to DNA testing for wrongfully convicted Texans.

The bill addresses issues raised by the Texas Criminal Court of Appeals (CCA) in its February 2014 decision in State v. Swearingen to deny death row inmate Larry Swearingen’s request for DNA testing on items including pantyhose used to strangle the victim. The CCA ruled that the current law requires those seeking testing to prove the existence of microscopic material on the evidence before testing – which is nearly impossible because it is invisible to the naked eye. However, two months later in State v. Holberg, the court noted an uncertainty in the law and suggested that the burden of proof may be lower than it had articulated in the Swearingen case.  In Swearingen, the CCA also noted the lack of clarity in the law as to whether a potential DNA database match could be considered an “exculpatory result” that could prove innocence.

“I may never have been able to prove my innocence under the current interpretation of the law,” said Morton, who was wrongfully convicted of murdering his wife Christine in 1987. “It was only because DNA testing detected invisible cells that excluded me and matched Mark Norwood’s profile in the DNA database that I was finally exonerated and my wife’s real killer was brought to justice. The law should be clarified so that other wrongfully convicted Texans like me can prove their innocence.”

“Michael Morton’s case is a tragic reminder that when an innocent person is behind bars the real perpetrators are free to commit other crimes as happened in his case,” said Senator Ellis. “By making small fixes to the law we can ensure that wrongfully convicted Texans have meaningful access to advanced crime-solving technology – such as touch DNA testing and DNA databases – to prove their innocence and assist law enforcement in finding the actual perpetrators.”

In response to issues raised by the CCA, Senator Ellis’s SB 487 would clarify that a court may grant testing on key crime scene evidence “that has a reasonable likelihood of containing biological material” – which may include tape, ligature, fingernail scrapings and other probative items. In addition, the bill makes it clear that the possibility of a DNA database comparison, for the purposes of identifying the true perpetrators, can be considered an “exculpatory result” that would allow an individual to qualify for DNA testing.

“Mr. Morton and the fifty plus other Texas DNA exonerees illustrate how important it is to ensure that Texas is effectively utilizing modern DNA technology to get justice for the wrongfully convicted and to improve public safety,” said Morton’s attorney Nina Morrison, a Senior Staff Attorney at the Innocence Project, which is affiliated with Cardozo School of Law. “This proposed legislation would improve meaningful access to DNA testing.”

In 2011, Michael Morton was exonerated in his wife’s murder after DNA testing of a bloody bandanna found some distance from the crime scene detected microscopic traces of male DNA (believed to be from skin, sweat or saliva), which was then uploaded into the state’s DNA database system and revealed a match to Mark Norwood. Norwood has since been convicted of the crime and is now facing trial for allegedly killing another woman while Morton was in prison.

Morton is one of the 52 Texans and 325 Americans proven innocent with DNA testing since 1989. Real perpetrators were identified in 21 of the DNA exoneration cases in Texas. Nationally, real perpetrators were identified in 160 DNA exoneration cases, and these persons went on to commit and be convicted of 145 additional crimes – including 77 rapes and 34 murders – while the innocent person was incarcerated.

Photos from press conference are available for your download and use here.

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