Criminal Justice Reform Bills Pass

Tim Cole was accused of a rape he didn't commit and died in prison before he could clear his name

Two criminal justice reform measures recommended last year by the Tim Cole Advisory Panel are now on their way to Gov. Rick Perry.

Senate Bill 122 by Sen. Rodney Ellis, expanding access to post-conviction DNA testing, and House Bill 215, an effort to improve the reliability of eyewitness identifications, each passed last week and will move to Perry’s desk. The Advisory Panel convened after the 2010 session to recommend improvements to Texas law that might help to prevent wrongful convictions – like that of the panel’s namesake, Tim Cole, who was convicted of a rape he did not commit, died in prison before he could clear his name, and was posthumously exonerated. But whether the reforms – particularly the eyewitness ID bill – will actually help prevent future miscarriages of justice remains to be seen. Ellis’ DNA bill would expand access to post-conviction testing based on claims of innocence, and would require testing whenever there is biological evidence that has not previously been tested, or when the evidence can be subjected to newer techniques that might be more revealing than the results of an older test. As the law currently reads, an inmate can access post-conviction testing only if the testing wasn’t previously available, the tests were not advanced enough to provide probative evidence of guilt or innocence, or the testing was not done through no fault of the defendant.

That last provision in particular has wreaked some havoc in Texas; in the case of death row inmate Hank Skinner – sentenced to death for a 1993 triple murder he says he did not commit – prosecutors blocked Skinner’s efforts for additional DNA testing of crime-scene evidence, saying he defaulted that right when, prior to his original trial, his lawyer chose not to test all items available for testing. Ellis’ bill would strip the narrowing language from the statute, ensuring that “if there is DNA evidence available to prove someone’s innocence, it can and will be tested,” Ellis said in a press release. “No longer will the door to justice be shut just because of a procedural error.” (SB 122 passed on a unanimous vote in the Senate in April and made it out of the House May 20, on a vote of 145-4.)

This is no small issue in Texas where, to date, there have been 46 DNA exonerations. Faulty eyewitness ID was implicated in the vast majority of those wrongful convictions, but it’s unclear whether Gallego’s HB 215 would be an effective tool to end mistaken IDs. (The bill passed the House in March with only Leo Berman, R-Tyler, voting against it, and passed out of the Senate unanimously last week.) The bill requires police agencies to adopt – by Sept. 1, 2012 – a “model” policy for administering live and photo lineups. The problem, however, is that there is no enforcement mechanism – no sanction for agencies that do not adopt such a policy – and, importantly, there is nothing in the bill that would keep out of court eyewitness IDs not obtained using best practices. Still, Steve Saloom, policy director for the Innocence Project, which has worked with other Texas stakeholders over the last six years to develop an eyewitness ID reform measure that could actually pass, says the incremental change in this bill is a good first step. “This is the best legislation and the most effective that this legislative process would allow for this year,” he said.