Houston legislator proposes innocence protection package in effort to halt wrongful convictions
February 04, 2011
Ellis works hard to halt wrongful executions
By Bobby Cervantes, Austin Bureau
February 3, 2011
AUSTIN — In the decade since state lawmakers last addressed wrongful convictions, Texas has earned the distinction of having the highest number of exonerations based on DNA evidence in the nation.
At least 42 men from a dozen Texas counties have leveled successful DNA challenges to their convictions, according to the Innocence Project of Texas.
In light of that, Sen. Rodney Ellis, D-Houston, is hoping a fresh move toward criminal justice reform will elbow its way to the forefront in a session jammed with a massive budget shortfall, redistricting and a raft of contentious measures, such as voter ID and anti-illegal immigration legislation.
Ellis is proposing an "Innocence Protection Package," four bills aimed at decreasing the number of wrongful convictions in Texas. Rep. Pete Gallego, D-Alpine, is the package's sponsor in the House.
"I tried to pick things that I thought were very much in the mainstream of criminal justice reforms that shouldn't cost money, that will save money," Ellis said. "They've been well-vetted and (have) broad-based support."
State lawmakers in 2009 created a panel to examine the issue of wrongful convictions and propose reforms. After a year-long investigation, the 11-member panel of legislators, judges and legal groups last August recommended changes for the 82nd Legislature.
Ellis' bills include many of the panel's suggestions, including uniform procedures for eyewitness identification, requiring investigators to record interrogations in serious felonies, streamlining defendants' appeals for DNA testing, and reorganizing Texas' indigent defense task force.
The eyewitness ID and DNA testing bills passed the Senate last session, but stalled in the House.
In 85 percent of exoneration cases, mistaken eyewitness identification sealed the defendants' guilt, according to the Innocence Project of Texas. In many counties, no uniform or documented eyewitness policies exist, the group said.
Under Ellis' bill, law enforcement agencies would have to develop written procedures for using suspects' photographs in line-ups and conducting live line-ups.
GOP oppositon unlikely
Rep. Jerry Madden, R-Plano, who served on the House Criminal Jurisprudence Committee last session, said he could not see a GOP effort to block Ellis' bills if they are in line with recommendations from the Texas Criminal Justice Integrity Unit, which Judge Barbara Hervey, of the Texas Court of Criminal Appeals, launched in 2008.
The unit includes Hervey, Ellis and reform advocates, including Jim Bethke, director of the Taskforce on Indigent Defense, and Barry Scheck, director of the New York-based Innocence Project.
"I have pretty good confidence that some of those things will move forward and would be passed," Madden said. "If they're different, they'd have to be looked at."
Dudley Sharp, a death penalty advocate and founder of Justice Matters, said anti-death penalty activists inflate the number of innocence claims to create a sense of urgency to pass the bills.
"How much of an innocence problem do we really have in this state?" Sharp said. "Before we do legislation, I would like to have identified how much of a problem this is, really?"
He said innocence advocates do not separate the number of actually innocent exonerees — meaning they had no connection to the crime - and those who are released based on a legal technicality or error.
Ellis' bill to require police to record interrogations also raises concerns about what evidence prosecutors will be allowed to use in court, Sharp said.
"Sometimes it's a lot easier to get a confession from somebody at the scene or right when you arrest them, where they're emotional, they'll waive their rights, and they'll confess," he said. "There has to be a provision whereby all of that stuff can still come in, and a judge can weigh the credibility of allowing it into trial. You can't just exclude them."
A former House member said the bills' sponsors now face a heightened impetus to build coalitions that can compete with a crowded session.
"You have a very full agenda when you take into account the budget, redistricting, immigration bills and all of the sunset issues and bills, some of which will carry forward from two years ago," said Sherri Greenberg, a professor at UT's Lyndon B. Johnson School of Public Affairs.
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