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A bill that would make DNA testing available to certain state prison inmates easily cleared the Texas Senate on Feb. 19, but some criminal defense lawyers say the measure doesn’t go far enough. “I think in theory it has sufficient holes in it that it may not help out at all,” says Randy Schaffer, a Houston solo. Michael B. Charlton, the Houston criminal defense lawyer who helped Roy Criner win his freedom after spending 10 years in prison for a rape he didn’t commit, says Criner probably would not have qualified for DNA testing under the wording of the bill. Under the bill, an inmate requesting DNA testing of biological evidence — such as hair or bodily fluids — must establish by “a preponderance of the evidence” that the test results would show a “reasonable probability” that he would not have been tried or convicted. Criner was exonerated after two DNA tests showed he wasn’t involved in the 1986 rape and murder of a 16-year-old hitchhiker near Conroe, Texas. The second test was on a cigarette butt that had been found near the teen-ager’s body. “There was no way we could have shown the materiality of the cigarette butt until we got it tested,” Charlton says. The bill’s requirement that the biological evidence be in the state’s possession at the time of the trial also is a problem, Schaffer says. Some of the DNA evidence that proved Christopher Ochoa’s innocence and led to his release in January after serving 12 years in prison for murder was in the possession of a California forensics laboratory, says Ochoa’s lawyer, Austin sole practitioner Bill Allison. Ochoa had signed a confession implicating himself and a friend in the 1988 murder of a woman at an Austin pizza restaurant but now says he was coerced to confess by Austin police officers. “The bill makes it more difficult for the Chris Ochoas of the world, but it doesn’t make it impossible,” says Allison, who has a wait-and-see attitude about the measure. Allison says his question is whether courts will take a very conservative approach and try to protect their convictions or a more open-minded approach that there are people who have been convicted but are innocent. Keith Hampton, legislative chairman for the Texas Criminal Defense Lawyers Association, was involved in behind-the-scenes negotiations on the bill and says there had to be some give and take in getting it drafted. “The bill is not perfect. It’s not everything we want, but rarely things are,” says Hampton, an Austin lawyer. But Hampton says he expects the bill to undergo some changes. “There’s a lot of tweaking left for this bill,” he says. The Texas Senate approved the bill by Sen. Robert Duncan, R-Lubbock, and sent it to the House on a 30-0 vote. “It’s a good criminal justice bill,” Duncan, a partner in Crenshaw, Dupree & Milam, told his Senate colleagues shortly before the vote. The bill would require prosecutors to hold onto biological evidence that could be tested for DNA. In capital cases, the material would have to be preserved until the inmate is executed, dies or is released on parole. Under the bill, a procedure would be established to enable inmates to petition courts to allow DNA testing at the state’s expense. However, the state would be liable for the costs only for those tests conducted by the Department of Public Safety laboratory or a lab under contract with DPS. The court-ordered testing would be limited to biological evidence that was not previously subjected to DNA tests because the technology either wasn’t available at the time of the inmate’s trial or wasn’t sophisticated enough to prove conclusively whether the individual is guilty or innocent. The identity of the perpetrator also would have had to have been an issue at the trial. A court could reject a motion for DNA testing from an inmate who pleaded guilty or nolo contendere to the crime, but an aide to Duncan says language in the bill would cover situations like the Ochoa case. The bill would authorize the testing if it could be shown that the plea was entered at no fault of the convicted person and would further the interests of justice. ON THE FAST TRACK House Criminal Jurisprudence Committee Chairman Juan Hinojosa, D-McAllen, is working on an amendment that would prohibit a court from finding that identity was not an issue in the case based solely on the inmate’s plea of guilty or nolo contendere. “We want to make sure that, in those instances where appropriate, DNA testing will be a matter of right to the person,” says Hinojosa, a shareholder in Hinojosa & Powell. But Duncan says he would be concerned about creating a right to DNA testing. “What we’re talking about is a process,” he says. “We’re not creating any substantive, constitutional or statutory right.” The possibility that inmates who pleaded guilty could be entitled to DNA testing is also a concern to Bexar County District Attorney Susan Reed. “I have a real hard time having people going back and challenging their guilty pleas,” says Reed, one of several prosecutors who was involved in negotiating the wording of the bill. Reed says she liked the measure the way it was written. District attorneys still have the option of seeking DNA testing if they believe a person has been wrongly convicted, she says. “I don’t see why we should have 200 or 300 people coming in to challenge their guilty pleas just to get another bite at the apple,” Reed says. Clay Strange, an assistant district attorney in Travis County and another prosecutor who has worked on the bill, says there is a “pretty good chance” that the ultimate bill will not preclude an inmate from obtaining a DNA test just because he pleaded guilty or nolo contendere. Travis County prosecutors have examined a number of cases in which DNA testing might make a difference in determining whether the person convicted of the crime is guilty, and Strange attributes that in part to what happened in the Ochoa case. “It certainly made us aware there are things that happen out there that you would never expect,” he says. Hinojosa has drafted several other amendments to the bill that could be considered by the House committee as early as this week, according to a committee spokesman. Under one of those amendments, if the convicting court finds the results of a DNA test exonerate the person convicted for the crime, the court can discharge the individual, vacate and set aside the judgment against him or grant a new trial, unless the state appeals the finding within 31 days. Schaffer says the bill passed by the Senate doesn’t provide a remedy if a DNA test shows an inmate is innocent. “It talks about this process, but it doesn’t have a payoff at the end,” he says. However, Schaffer says allowing the convicting court to enter an order that would free the individual or grant a new trial would set up a conflict between the new legislation and a provision in the Code of Criminal Procedure. Schaffer also questions how the bill might impact inmates’ right to be reimbursed by the state after being pardoned if they were wrongly convicted and incarcerated. Under the proposed legislation, if the trial judge recommends dismissal and the charge is dismissed, the governor could take the position that a pardon is not necessary, he says. “Can the bill be used as a device to keep these people from being compensated?” Schaffer asks. The bill is expected to be on a fast track. Texas Gov. Rick Perry has declared the measure an emergency, clearing away procedural hurdles that could hold up its progress during the first 60 days of the session and enabling it to take effect as soon as he signs it. Before it can reach Perry’s desk, however, the bill must win an endorsement from the House committee and the approval of the full House. If the House makes changes that are not accepted by the Senate, the bill will go to a joint conference committee that will work out the differences.

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