Bills to prevent, cause false convictions on House floor today

Ironically, there are bills on the Texas House floor calendar today (Thursday) aimed both at preventing false convictions and guaranteeing more of them.

RE: Preventing False Convictions. HB 48 by Ruth McLendon would create an Innocence Commission to analyze the causes of false convictions and suggest legislative reforms to prevent them in the future. The Lege once before created a short-term study commission but has enacted nearly all the reforms they suggested. Time for a fresh look. The House has supported this bipartisan idea in the past; the Senate is where it ran into trouble. See a Fort Worth Star-Telegram editorial in favor of the bill.

RE: Ensuring More False Convictions. HB 189 by Senfronia Thompson would remove the statute of limitations on all sexual assault cases, allowing, say, a date rape allegation from decades past to be sufficient to secure a conviction. Presently, old cases can be prosecuted when there is biological evidence to support the allegation. Thompson's bill would eliminate those fetters even for uncorroborated allegations going forward. (They can only change it for future cases, thankfully, not past ones.) The suggestion came from the Wendy Davis gubernatorial campaign, though Thompson now likes to downplay its origins and her staff is referring to the legislation as the Bill Cosby Act. Really it's the Wendy Davis Campaign Memorial Bad Idea.

Thompson's bill especially bugs me because she did not follow through on the compromise the House Criminal Jurisprudence Committee was told would be made in the committee substitute. The committee was informed the substitute would only expand the SOL for cases where biological evidence existed, simply adding an absent category of sexual assault not included in the language now, but requiring DNA to prosecute very old cases. But that's not the version voted out of committee, which simply removes the statute of limitations entirely.

The version of HB 189 headed to the floor is a goddawful bill that's virtually guaranteed to produce more false and questionable convictions in the future. Honestly, after witnessing dozens of men falsely convicted of rape streaming through the capitol over the years in support of Rep. McLendon's bill and other innocence reforms, Rep. Thompson should know better.

Regrettably, McLendon's bill can't pass quickly enough for a commission to recommend that Thompson's bill is a catastrophe from an innocence perspective. House members will have to figure it out on their own for this bad idea to be rejected. And it should be.

UPDATE: The House Research Organization report, released today, brings this addendum:

The author plans to offer a floor amendment that would change the statute of limitation only for certain sexual assault cases involving multiple victims. Under the planned amendment, there would be no statute of limitation if there were probable cause to believe the defendant repeatedly committed the same or similar offense against five or more victims.

That at least would limit the bill's scope, but it's still not an intellectually consistent policy. Better if HB 189 were simply voted down altogether.

NUTHER UPDATE: I didn't get to watch the floor debate but, as amended, the bill passed by a relatively narrow 88-46 vote. All "nay" votes were Republican.

Cynical campaign ploy removing statute of limitations for rape scaled back in Lege process

Last week, the Texas House Criminal Jurisprudence Committee heard a bill by state Rep. Senfronia Thompson which would codify an awful suggestion from last year by failed Democratic gubernatorial candidate, Wendy Davis, to eliminate the statute of limitations on rape. Grits referred to the idea at the time as "misanthropic madness."

Imagine being accused of date rape 25 years ago: How could anyone possibly defend oneself if the state can secure a conviction based solely on the alleged victim's uncorroborated testimony? This would be a recipe for ramping up the number of false rape convictions, which readers will recall is the main category of defendants who populate the state's highest-in-the-country number of DNA exonerees.

Thankfully, judging from testimony at the hearing, Rep. Thompson plans to scale back the bill in a committee substitute to only removing the statute of limitations in cases where DNA evidence existed to corroborate the allegation, particularly referencing the thousands of untested rape kits sitting in backlog at police departments around the state. It would allow prosecution for older "aggravated" sexual assault in addition to "regular" sexual assault in cases where DNA evidence exists, according to testimony by the Texas Criminal Defense Lawyers Association's Kristin Etter. That's a compromise I can live with from a protect-the-innocent perspective (though there are other purposes behind statutes of limitations which are still upended by the proposal).

Grits appreciates Rep. Thompson's willingness to revise the bill. She's championed innocence topics over the years with such unfailing vigor that it would have been a particularly harsh blow for her to push through such a terrible idea, borne of cynical political gamesmanship.

Finally, for reasons which escape me, the House Criminal Jurisprudence Committee on Wednesday will hear another bill by Rep. Ryan Guillen proposing identical language. (It'd sure be easier if the committee would hear identical bills on the same day.) Here's hoping he's open to the same compromise.

UPDATE: The committee substitute passed by the committee did NOT adjust the bill the way Etter described, eliminating the statute of limitations in all circumstances. What a terrible bill.

Silly Season: When in doubt, make up stuff

Grits cannot and will not respond to every bit of campaign-related criminal justice flotsam and jetsam on this blog. The task of correcting that many errors is way too big for a part-time hobbyist blogger of my ilk. So much disastrously wrong silliness would require a small, full-time team to vet. Two examples:

Rick Perry: Terrorists at the Border
The media has lately been debunking Gov. Perry's claims that Islamic terrorists may attempt to cross the Texas border through the desert to attack our cities. But it's only his presidential aspirations that make this news. The media thoroughly debunked those absurd claims from the time Perry and others first suggested Islamic terrorists had crossed the Rio Grande in 2006. But just like now, he kept repeating them because, false or not, the meme appealed to the far-right base in the Republican Party while avoiding tougher stances, for example, on employers who hired illegal immigrants. And the fact that he stuck to his guns in the face of the "liberal media" saying he was wrong made the base happier still.

Now Perry is hoping the same "Damn the Facts" approach (Bill Maher calls such memes "zombie lies.") will work on the national stage. But by comparison to a presidential campaign, the Texas media have been lap dogs. I don't think that bush-league stuff will play once the national press corps hones in on his campaign; IMO, this is a recipe for repeating his 2012 performance, crumbling under media scrutiny when his moment in the spotlight hits. Perry famously avoided the Texas press in his latter gubernatorial campaigns, spending tens of millions on TV advertising to appeal directly to the voters. But you can't avoid fact checkers running nationwide for the presidency.

Wendy Davis: On ending statute of limitations for rape
It's bad enough that Wendy Davis, hoping to capitalize on an old Supreme Court opinion by Greg Abbott siding against a rape victim, has begun to rally for eliminating the statute of limitations for rape. Now Greg Abbott has said he favors the policy, too. So led by a demagoguing Democrat, Abbott felt pressure to follow suit and the result: A bipartisan consensus for a really terrible policy. Thanks for nothing.

To be clear: Texas has already removed the statute of limitations for rape in cases where DNA evidence matches an old rape kit [see CCP 12.01(1)(c)]. Davis is suggesting that cases with less conclusive standards of proof should also have no statute of limitations; currently it's ten years in non-DNA cases. Beyond that, how in the world is anyone supposed to prepare a defense against an alleged sexual contact from more than a decade ago? Or for that matter, to prove the event affirmatively beyond a reasonable doubt ten years later without DNA? Keep in mind, the Lege could only remove the statute of limitations for future cases; the episodes where DNA accused people who couldn't be tried were all from before the law was changed to reflect DNA advancements. To the extent this is a problem, it's already been fixed as best as the Lege can. What Davis proposed is misanthropic madness, politicizing rape in a way a male candidate probably couldn't get away with.

It's not just that this is a bad idea, it's a cynical one. Which is why it's unsurprising that her opponent issued an equally cynical "Me Too." After all, what candidate wants to appear on the same side of an argument as alleged rapists in the home stretch of an election? Especially for polling driven campaigns (rapists never poll well), these look on the surface like easy shots. OTOH, if you were looking for a candidate in this race who favored strong, substantive due process rights to avoid convicting innocent people, neither party has a thing to offer you.

Davis trying to out-flank Abbott to the right is a great example of how we got here: Too many Texas Democrats over the years have tried the tuffer-than-thou strategy and it's rarely effective. Certainly Davis won't beat Greg Abbott that way, or at all, really.

(RELATED: From Kiah Collier at the Houston Chronicle (8/22), "Experts cast doubt on Davis rape statute plan.")

* * *

I get that both these candidates face losing prospects and feel the need to swing for the fences. But regrettably, as in sports, adversity in politics more frequently reveals one's character than shapes it. What's revealed by these two dubious campaign gambits, I'm afraid, doesn't speak favorably of those in the highest echelons of the two Texas political parties.

It's going to be a long, ugly campaign season.