Habeas matters: Appointing counsel, codifying Robbins

The Texas House Criminal Jurisprudence Committee today will hear a pair of bills related to habeas corpus writs that relate to topics frequently covered on this blog during the years I worked for the Innocence Project of Texas:

Habeas writs and appointed counsel
HB 1346 by Alonzo provides that indigent defendants may be appointed counsel to file a habeas corpus writ when prosecutors agree in court that a defendant who's already been sentenced "is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This would reach cases like the folks put in limbo when Texas courts overturned statutes on improper photography and online solicitation of a minor, but not necessarily episodes like the Jonathon Salvador fiasco, where it's still not clear everyone entitled to relief was appointed an attorney or even notified about crime-lab misconduct that may have affected their case.

This bill doesn't go nearly as far as the statewide public defender for habeas writs suggested last year by Rick Perry's former general counsel. Indeed, it's a far cry, even, from suggestions in the "white paper" produced by the Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission. But at least the legislation acknowledges a problem and takes tentative first steps to address it. Companion legislation, SB 662 by Rodriguez, was heard yesterday and voted favorably out of the Senate Criminal Justice Committee.

Junk science writ includes bad scientists, not just bad science
HB 3724 by Herrero is an excellent bill which would codify the results of Ex Parte Robbins interpreting Texas' new junk science writ, clarifying the debate over legislative intent at the heart of the 5-4 judicial split in that pivotal case.

In Robbins, the court authorized an inclusive reading of the statute to say the defendant was entitled to relief when the state's expert later corrected her opinion after the conviction to concur with the defense. The majority decided the statute was necessary (and was intended) not just to cover bad science but also bad scientists.

Four members of the Court of Criminal Appeals would only have allowed use of the junk science writ in areas like arson where the entire field has advanced and previously false propositions were testified to as truth in court by investigators because of their training. The majority, though, cited legislative history to say the writ should also cover cases where a forensic expert was simply wrong and later self-corrected.

Having some personal knowledge on the question, Grits agrees that the legislative history supports the majority ruling in Robbins. But the margin supporting that interpretation on the court is razor thin and almost certainly subject to future attack without legislative clarification. (Three of the five votes in the majority left the bench in January.) So it makes a lot of sense for Chairman Herrero to go ahead and say once and for all exactly what the Legislature meant so the courts don't misinterpret later.

This sort of back and forth between the Legislature and the courts has been repeatedly necessary over the last decade and a half in Texas post-conviction law. You saw it in statutes authorizing DNA testing. The CCA said DNA couldn't exonerate someone. The Lege said "yes it can, do the tests." Then prosecutors and courts would find excuses not to grant testing. So the Lege came back to strengthen the law until, eventually, prosecutors had few grounds left available to oppose DNA testing under Ch. 64 of the Code of Criminal Procedure.

Herrero's bill would similarly clarify the statute so this is no longer a point of contention for the court, preventing tremendous uncertainty and innumerable future appellate controversies. From the perspective of someone wrongfully convicted, whether they were incarcerated because of "bad science" or merely a "bad scientist" is a distinction without a difference.