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Criminal defendants who plead guilty but later assert their innocence would have a defense if prosecuted for perjury under a bill tossed in the legislative hopper by state Sen. Juan Hinojosa, D-McAllen. The bill would allow those who have pleaded guilty to claim innocence later — under certain circumstances — without fear of prosecution. Hinojosa, a shareholder in McAllen’s Hinojosa & Powell, filed the bill on Feb. 6. He says the measure is needed because some prosecutors have threatened to prosecute inmates on perjury charges because the inmates pleaded guilty but subsequently sought DNA tests based on claims that they’re innocent. “That’s ludicrous,” he says. Williamson County District Attorney John Bradley says Hinojosa’s proposal — S.B. 384 – would insulate defendants who lie from perjury charges. “We are already referring to it as the ‘right to lie’ bill,” Bradley says. “Those DAs who say that are DAs who forget that their responsibility is to justice, not to notch another notch on their belt for a conviction when there’s something wrong with the conviction,” Hinojosa says. Bradley advocates holding inmates accountable if they use habeas writs to “spin lies.” In 2002, he prosecuted two inmates for allegedly lying in habeas corpus writ applications in which they claimed to be innocent of the crimes to which they had pleaded guilty. Leonard Lynn Washington was sentenced to two years in prison — in addition to the 40-year sentence he’s serving for aggravated sexual assault of a child — after he pleaded guilty to lying under oath in a pro se writ. A 369th District Court jury found Gerald Nelson Lee guilty of aggravated perjury and sentenced him to an additional four years behind bars. Lee originally was sentenced to a 25-year prison term for sexual assault and indecency with a child. In an interview at the time, Bradley said he decided to use the aggravated perjury statute, Texas Penal Code �37.03, to prosecute inmates who he believes have made false claims in habeas writs to improve a system that’s clogged with frivolous writ applications. “It’s rhetoric to say this is a right to lie,” Keith Hampton, legislative liaison for the Texas Criminal Defense Lawyers Association, says of Hinojosa’s bill. Hampton, an Austin criminal-defense lawyer, says he suggested the premise for the bill to Hinojosa’s staff. Allowing a DA to prosecute someone for claiming innocence “chills to the bone” anyone who might make such a claim because he is innocent, Hampton says. There are few claims of innocence in habeas writs, he says. “What you’re doing is throwing the baby out with the bath water,” Hampton says. “You’re certainly discouraging inmates from scribbling lies on paper, but you’re also discouraging people who are innocent.” Leslie Halasz, an Austin solo, says an exception from perjury prosecution is needed for the person who asserts actual innocence. “We need that on the books,” she says. Halasz says she would have asserted innocence in a writ that she filed for a client but decided against doing so because the client previously had pleaded guilty in Williamson County. “I did not want to open him up to a brand new felony charge,” says Halasz, who declines to identify her client because his writ application is still pending. But Bill Turner, the Brazos County DA, says Hinojosa’s bill makes no sense to him. “You always hear that a defendant has a God-given right to lie in the courtroom, but I’ve never seen it in writing,” Turner says. “The whole criminal justice system is based on truthful testimony.” Under Hinojosa’s bill, he says, the judge and jury have no assurance that a defendant’s testimony is reliable. Turner says the bill, if passed by the Legislature, could backfire on defendants. A prosecutor could point to that bill and tell jurors that, when they are evaluating a defendant’s testimony, to keep in mind that the defendant is not required to tell the truth and can tell lies without ramification. Hinojosa says the bill is “very narrow in scope” and only would apply in cases in which defendants pleaded guilty but later had evidence showing they were innocent. The bill also would provide a defense to prosecution for perjury if a defendant allegedly made a false statement in denying grounds for the revocation of his bail, community supervision, parole or mandatory supervision. Lt. Gov. David Dewhurst referred the bill to the Senate Criminal Justice Committee on Feb. 11.

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