Active death penalty explains efficacy of Texas' junk-science writ

There are three reasons that Grits expects the Lone Star State to emerge as the epicenter of forensic reform over the coming couple of decades. First, our Forensic Science Commission has altered the terms of debate among legislators and stakeholders about how to react when errors and bad science are discovered. I may not agree with everything they put out, but they've educated stakeholders here to a much greater extent than in most other states.

Second is Texas' junk-science writ, as discussed on Wednesday in the context of the Court of Criminal Appeals' Chaney decision invalidating bite-mark identification testimony. Texas and California are the only two states so far to expand habeas corpus in this way. (Comparable legislation has never been pushed in Congress, but that's a Texas innovation they should copy.)

These two Texas reform measures have been widely praised. But together they would be insufficient to rigorously reevaluate the array of questioned forensics identified by the National Academy of Sciences and the disbanded Obama-era president's commission on forensics. Texas courts have refused to exclude such testimony in front-end suppression hearings under the Daubert standard. And courts have discretion which habeas petitions to consider, so there's no way to compel them to take up these difficult cases.

The main reason Grits can confidently predict Texas will emerge at the forefront of forthcoming forensic debates is that we still actively use the death penalty. That's proven to be a critical factor because, as I'd observed previously:

In Texas, capital cases are the one sliver of indigent defendants whose appeals are all paid for by the state, meaning those defendants have access to attorneys to file a state habeas corpus writ. So it makes sense that many of the most high-profile, early uses of the junk-science writ would come in death-penalty cases. By contrast, plea the case to life without parole, and a defendant accused of the same crime with the same evidence would have no access to an attorney at the habeas corpus stage.

I discussed exactly this dynamic with Amanda Marzullo, the executive director of the Texas Defender Service, a nonprofit that represents capital-murder defendants, in a segment on the August episode of Just Liberty's Reasonably Suspicious podcast. Check out that conversation here:


This explains why California's writ hasn't as yet had as big an impact: Their capital punishment system is moribund and few executions are set, so there isn't the constant stream of deadlines requiring courts to act. These days, quite a few death-penalty cases include junk-science writ claims, and the Court of Criminal Appeals is required to consider all of them.

It's not inevitable that death-penalty cases will dominate the initial round of Texas junk-science writs. Instead, it's a function of which indigent defendants have access to counsel to challenge bad evidence in their cases.

Judge Elsa Alcala on the Court of Criminal Appeals has suggested the Legislature should extend the right to counsel to habeas corpus proceedings in ineffective assistance of counsel cases. If the Legislature were to do that for cases challenging old forensics under the junk-science writ, perhaps expanding the Office of Capital and Forensic Writs to take on the function, then junk-science writs would arise in a wider variety of cases.

Eight states, according to Judge Alcala's counting, appoint counsel for every indigent habeas-corpus petitioner. If indigent habeas petitioners in Texas had such access, capital cases wouldn't dominate the junk-science writ process.

As things stand in Texas, with forensics disproportionately being challenged in capital writs, Grits won't be surprised if it takes another 20 years or more for all of the dubious forensics identified by the NAS to be challenged and either confirmed or dismissed through the junk-science writ process. But at least we have a process. Most states and the federal government do not.