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Even as James Douglas Waller wins a second DNA test of evidence he hopes will clear his name, his unusual case poses an obvious question that Texas’ new DNA law doesn’t seem to address: What happens if a DNA test comes back favorable for the defendant? At a Nov. 30 hearing, Judge John Creuzot of the Criminal District Court in Dallas County gave the go-ahead for a test of three hairs found at the scene of a 1982 Dallas rape for which Waller was convicted. Both sides expect that the hairs did not come from Waller. Yet it’s unclear what Waller’s remedy will be if the DNA test shows the hairs aren’t his since the law — Chapter 64 of the Texas Code of Criminal Procedure — doesn’t offer any guidance. “Nobody knows,” says Randy Schaffer, a Houston criminal-defense lawyer who represents Waller, in an interview after the hearing. “This is such a weak, ineffective law. There are holes in it that a third-string running back could run through.” Waller says he’s innocent and wants the stigma of being a “convicted sex offender” lifted from his name, and he hopes to either get a new trial or have an appellate court overturn his conviction so he’ll no longer be on parole. Based largely on eyewitness testimony, he was convicted of raping a 12-year-old boy and served 11 years of a 30-year sentence before being paroled in 1993. In September 2001, his first shot at exoneration failed because semen found in the case was consumed during a test at a court-approved lab; the test provided inconclusive results. Prosecutors didn’t oppose Waller’s request to test the semen evidence. But at the Nov. 30 hearing, they did oppose testing the hairs, arguing it came from a “filthy” sheet on a bed that had been shared by five people and would not provide the kind of evidence Waller would need to shake his conviction. Lawyers involved in Waller’s case are not alone in their struggles with the law, which never says what the next step is after a determination on a DNA test is made by a trial court and the case is appealed. It’s a question appellate lawyers in other DAs’ offices have been kicking around, including in Bexar County, Texas, where District Attorney Susan Reed allowed some inmates to have DNA tests even before Chapter 64 passed. “It seems like if you get a favorable finding, on this thing, the only way that you can get relief is to file a habeas writ,” says Alan Battaglia, chief of the appellate division in the Bexar County DA’s office. “That would include the trial court’s favorable finding and the trial court would recommend that you get favorable relief. It seems like that’s the only way it would work.” Two days before Waller’s hearing, the appellate shortcomings of the law were highlighted by the Court of Criminal Appeals during oral arguments in Kutzner v. State. On Nov. 28, CCA judges struggled with whether they had the jurisdiction to hear an appeal of a death row inmate who wanted a DNA test in his case, questioning whether the appeal from the denial of a test could be a civil matter. Usually only appeals from convictions are heard by the CCA; DNA test hearings are not convictions. In Waller’s case, an official from the Dallas County District Attorney’s office declined to say whether prosecutors will appeal Dallas Criminal District Court No. 4 Judge Creuzot’s order allowing the hair evidence to be tested. Lori Ordiway, chief of the appellate division at the Dallas DA’s office, says if the test establishes the hair did not come from Waller, he may be eligible to file a writ of habeas corpus with Creuzot’s court by arguing that new evidence was discovered in his case. Regardless, Schaffer says the law doesn’t make clear what sort of finding Creuzot is supposed to make if the DNA from the hair test doesn’t match Waller’s DNA. “What’s the effect of that finding? Does he [Creuzot] have the authority to order a new trial? Or do we file a writ?” Schaffer asks. “They [the Legislature] may have created a right without a remedy,” Schaffer says. TOUGH OBSTACLE During the hearing, Schaffer had to overcome some obstacles that few defense lawyers have successfully cleared in contested hearings of DNA evidence. Several defense attorneys say it is difficult to overcome the defense’s chief burden under the DNA testing law — that “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” To prove that in Waller’s case, Schaffer put on three witnesses at the hearing. They included a forensic expert who testified that the hairs left at the scene most likely came from the suspect; a veteran polygraph examiner who testified that Waller was one of the few people whom he ever had examined who passed a post-conviction polygraph examination; and a former prosecutor who worked in the Dallas DA’s office in the early 1980s who said that, had he supervised the prosecution of Waller’s case, he would have not taken it to trial. Still, the hair evidence proves nothing, argued Assistant DA Bryan Rutherford. The hair could have come from anywhere, Rutherford said. “Even if the hair were tested and came back with an exonerating result, it wouldn’t exonerate Mr. Waller,” Rutherford said. “It just proves that the hair did not come from Mr. Waller.” Schaffer argued at the hearing that the DA’s office is trying to cover up an 18-year-old mistake. “The reason they are opposing the test is because they know it will exonerate him,” Schaffer said during the hearing. “Look at the position they are taking, ‘We believe the hair didn’t come from the defendant, so let’s not test it,’” Schaffer says. “They are able to fool the jury at trial with that sort of double talk. But they can’t take that position with a DNA test.” Creuzot ruled that the hair can be tested at a Pennsylvania lab because no Texas Department of Public Safety Lab or lab under contract by DPS is capable of performing hair DNA tests. (The DNA law requires that a DPS lab or a DPS-contracted lab must perform such tests if they are capable.) Even though gaining permission to test the hairs was a small victory in Waller’s eight-year battle for exoneration, he did not attend the Nov. 30 hearing. Waller was making funeral arrangements for his wife, Doris, who was killed in a car accident two days before the hearing. She was eight months pregnant; the unborn child did not survive. Doris Waller had sent letters to Creuzot and Gov. Rick Perry asking that they take an interest in her husband’s case. In an interview with Texas Lawyer in early November, Doris Waller was concerned that if her husband’s sex offender status was not lifted, her family would be ostracized. “We’re not rich people,” Doris Waller said. “But if we’ve got to live in our car to clear his name, that’s what we’ll do.” James Waller says he’s spent $15,000 in legal fees in his court fight. Schaffer says Waller also agreed to pay the cost of the hair DNA test, $7,200. Notes Schaffer, “The money that would have gone to a coffin, now goes to test hair.”

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