Monday, June 01, 2015

Previewing oral arguments on TX junk science writ

The 84th Texas Legislature ends today but Grits is already looking forward, as are a few stalwart reporters who're paying attention, to oral arguments on Wednesday at the Texas Court of Criminal Appeals for Ex Parte Robbins III, deciding once and for all (or at least, for now) whether the state's new junk science writ will be interpreted broadly, as the court ruled last year, or narrowly as the presiding judge and a strident minority on the court would prefer.

At the Houston Press, Craig Malisow previewed the case and the Marshall Project's Maurice Chammah wrote about it last week. And of course, in this Grits podcast, Texas Defender Service policy director Mandy Marzullo described the complex interplay between the law the court will be interpreting and a new statute sent to the governor last week essentially codifying the court's ruling from last year. Grits had earlier described the odd scenario witnessed this spring as a "race": After  three new members joined the court, it was announced they would rehear the case. So, the legislature rushed to pass a remedial statute before the least dangerous branch could weaken its earlier decision. See an amicus brief submitted to the court by the Innocence Project of Texas.

For Grits, Wednesday's arguments represent the final stage of a journey that began back in 2008 when the idea for a junk science writ was first developed - among the first things I worked on at the Innocence Project of Texas. That effort gained greater steam after the National Academy of Sciences in 2009 issued a major report critical of the lack of scientific basis underlying several prominent forensic methods and techniques and their presentation in court. Then the suggestion was endorsed by the Tim Cole Advisory Panel on Wrongful Convictions. When the bill passed in 2013, it was the first in the nation of its kind (California followed suit with their own version earlier this year). And then the tight 5-4 decision last year gave the new law about as much life as any of us could have hoped.

I'd like to think the Herrero/Whitmire bill codifying Robbins II would settle the matter, since that case itself hinged largely on questions of legislative intent. But Grits is not entirely confident that was the principle reason for opposition last time around so much as the nearest available excuse. So I'm slightly less sanguine about the outcome than one might expect, despite the 84th Legislature's clear expression of legislative will. If anybody can pull it off, though, it's Robbins' attorney, Brian Wice, against whom one wouldn't want to bet in a rubber match. Time will tell. Wednesday ought to be fun.

1 comment:

Anonymous said...

The ultimate "hidden" problem is that D.W.I. prosecutions are based on junk science but D.W.I. enforcement is big business. The NHTSA knows it, DPS knows it, and I suspect the CCA has a pretty good idea.