Not Your Same Old Criminal Jurisprudence Committee?
New voices on committee asking more questions
By Jordan Smith, 10:02AM, Thu. Feb. 28
It may meet in the same room in the Capitol extension, but the 83rd ain't your 82nd – or 81st, or 80th even – House Criminal Jurisprudence committee. Or at least it isn't sounding that way so far.
For starters there's no Rep. Debbie Riddle, R-Tomball, who served four terms on the committee. More importantly, there's no Rep. Pete Gallego, who gave up his state seat for a seat in the U.S. Congress. And as good as Gallego was – as fair-minded and universally well-respected as he was during his two sessions as the committee chair – there are signs that lawmakers assigned to the committee this year, four freshman including a couple Tea Partiers, aren't as conciliatory, or as inclined to go along with whatever last session's prevailing wisdom might have been.
Case in point was Tuesday's meeting of the committee, now chaired by Rep. Abel Herrero, D-Corpus Christi, the first during which the members considered individual bills. For their first go-round, lawmakers considered just three pieces of legislation, including what may yet earn perennial status: House Bill 70, carried by Rep. Allen Fletcher, a former Houston cop. The bill would change the law by making an exception to "The Rule," which bars witnesses in a criminal case from remaining in the courtroom when other witnesses testify. The idea, of course, is to ensure that a person's testimony is his own and isn't influenced by the testimony of any other witnesses. And while judges currently have discretion to exempt individuals from the Rule (this often happens in higher profile cases), HB 70 would codify an exception to the rule to require that prosecutors be allowed to designate a law enforcement officer – likely the lead investigator on whatever case is being tried – to remain in the courtroom, at the prosecutor's side, throughout a trial, before and after that officer has testified.
The bill is clearly favored by the state prosecutors' association, the Texas District and County Attorneys Association, and has in the past been voted out of committee – at least twice, including a 9-0 vote in favor in 2011 – despite defense lawyer objections. Nonetheless, the bill hasn't yet made it out of the Senate. And if the hearing Tuesday is any indication, it very well may not even make it out of committee this year.
Indeed, Fletcher received an onslaught of questions about the bill from freshman Reps. Matt Schaefer, R- Tyler (the Partier who ousted Rep. Leo Berman), Steve Toth, R-The Woodlands, and Terry Canales, D-Edinburg, each of whom was skeptical about the proposed change. Why should we take discretion away from judges to aid prosecutors, Canales asked; and what about perjury – officers aren't immune, he noted. Can Fletcher think of any prosecutions botched because a cop wasn't there to ensure the lawyers didn't goof up the facts, Toth asked. Fletcher couldn't offer an example. And wouldn't this exception offer an officer the opportunity to "rehabilitate" testimony that may not be so favorable to the state, Schaefer wondered.
The questions kept coming, even as Reps. Stefani Carter, R-Dallas, and Joe Moody, D-El Paso – both former prosecutors – did their best to try to bolster Fletcher, who sounded taken aback by the pointed questions. Indeed, Carter noted that the bill didn't even earn "two or three questions" before being voted out by the entire committee in 2011; and Moody even went so far as to suggest that if an officer is in the room and "designated" as lead on an investigation that it could help to thwart wrongful convictions based on a failure to disclose evidence favorable to the defense – "if you find out" later that "another wrongful conviction has taken place" lawyers will know exactly which cop to question first, Moody suggested.
In laying out the bill, Fletcher said that not having an officer in the courtroom presented the state with a "significant disadvantage" over the defendant, accused of a crime by the state, because the defense is "able to have their client seated at the defense table to consult throughout the trial." Needless to say, the freshmen did not appear sympathetic. There's a reason we "put the highest possible burden" onto the state, requiring proof beyond a reasonable doubt, to secure a conviction, Schaefer said. Fletcher's bill, he suggested, is giving the state "a tool that lessens that burden just a little bit."
The bill was left pending.