Texas, California 'junk science writs' should spur bills in other states

Regular Grits readers are well aware of Texas' "junk science writ," which was added to the state's habeas corpus statute in 2013 then amended in 2015. The legislation represented an acknowledgement of the flaws in and lack of scientific basis for many traditional forensic disciplines which were articulated by the National Academy of Sciences in 2009. Though the Texas prosecutors' association dubbed the bill a sign of the "writ apocalypse," elsewhere it was hailed as a sign of progress.

In 2014, California became the second state to expand habeas corpus in this fashion. I've recently learned a bit more about what they did and thought I'd share. Here's a press release from the bill author from when the legislation was sent to the governor, a missive from AP, and coverage from the Washington Post's Radley Balko. See also a fact sheet promoting the bill, which explicitly references Texas' statute as an antecedent.

The poster-child case for the California statute involved bite mark evidence and, as it happens, my neighbor Jordan Smith, formerly of the Austin Chronicle, wrote the most extensive piece I've found describing it for The Intercept. See also earlier coverage from NPR and the national Innocence Project and the California Innocence Project's write-ups of the case.

California's statute was a little different than ours. (Here's CA's bill language.) Texas created an independent cause of action (CCP 11.073) under our habeas corpus statute, while their bill expanded the scope of habeas claims available challenging "false evidence" to include both outdated forensics and experts who later repudiated their own testimony.

FWIW, many Texas attorneys thought that false-evidence claims should have already included these forensic issues based on the plain language of past court holdings. It was the dogged recalcitrance of the Court of Criminal Appeals to expand their jurisprudence in that way which inspired the Texas law. When first drafting Texas statute (I was then policy director for the Innocence Project of Texas), we thought about doing it through expanding the scope of false-evidence claims but decided a stand-alone version would be cleaner and less subject to judicial gamesmanship aimed at thwarting its intentions, which as it turned out was a prescient concern.

It's worth revisiting this history because of the possibility that other states will follow suit, a prospect which tickles me to no end. Grits recently spent some time via phone and email with advocates from a large Midwestern state who want to take on this issue. And there have already been calls in other states to create similar avenues of redress. As justice systems state by state grapple with the myriad issues raised by flawed forensics, which are only beginning to dawn on front-line practitioners, one strongly suspects Texas and California won't be the last to expand habeas corpus in this fashion.

MORE: Hours after this post went up, the PBS Newshour tackled this subject in a segment titled, "Should people convicted based on unsound science be given new trials." 

See prior, related Grits posts on Texas' junk science writ:

• Court of Criminal Appeals judges call out colleagues for judicial activism on TX junk science writ
• Abbott signs bill codifying broad reading of Texas' junk science writ
• Difficult to read tea leaves from oral argument on junk science writ
• Previewing oral arguments on Texas' junk science writ
• Podcast: Tweaking Texas' junk science habeas writ
• Habeas matters: Appointing counsel, codifying Robbins
• CCA: Junk science writ covers bad scientists as well as bad science
• Texas' new junk science writ called 'elegant' and 'phenomenally important'
• Backstory: Texas Observer on the San Antonio Four
• San Antonio Four case, Texas junk science writ lauded in national press
• Fran Keller released based on refuted junk science
• San Antonio Four Roundup
• Godsey: 'Texas now on cutting edge of efforts to free the innocent'
• SA4 to walk free: New Texas statute combats injustice caused by junk science
• Shaky science, un-recorded confession form basis of El Paso habeas writ
• SA 4 may benefit from new habeas statute affording relief in junk science cases
• Neal Robbins writ headed back to CCA after Lege ostensibly passed fix
• Interpreting Texas' new junk science writ
• Judge pondering habeas writ based on erroneous science testimony
• Habeas reform at the Texas Legislature: The backstory
• Governor signs junk-science habeas bill
• Bill to allow habeas relief on junk science cases passes Texas Senate
• Bills would bolster Great Writ for the 21st century, expose prosecutor misconduct
• Texas habeas law needs updating to accommodating changing science
• CCA laments 'disconnect between changing science and reliable verdicts' it helped create
• ME testimony false according to science but not Texas law, or, Elsa Alcala's first solo dance earns spotlight