Today is the 133rd day of the 140-day legisltive session. Sine Die - aka, adjournment - is Monday, May 27. You can view the various deadlines that limit legislative activity as the days peel off the calendar.
Andrew Cohen writes about the passage of a major criminal discovery law, "In Texas, a Bold Step Toward Justice," for the Brennan Center. He recently joined the Center as a Fellow.
It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.
The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.
It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.
The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.
Cohen's essay was written before Governor Perry signed the measure into law.
The Austin Chronicle posts, "Junking Junk Science?" It's by Jordan Smith.
It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?
The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.
As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."
As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.
Earlier coverage of the 83rd Regular Session of the Texas Legislature begins at the link.