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With the state Legislature’s next regular session beginning in less than five months, lawmakers on the recently formed Texas Criminal Justice Integrity Unit have urged other TCJIU members to reach consensus on reforms and start the ball rolling on bills. If reforms in the criminal justice system need state money, the unit must start working on the funding needs now, state Rep. Jim McReynolds, D-Lufkin, and a TCJIU member, told the group during its inaugural meeting Aug. 5. “We can’t wait until January,” McReynolds said. State Sen. Rodney Ellis, a Houston Democrat who chairs the New York City-based Innocence Project’s board of directors and is a member of the TCJIU, said the unit should ask Gov. Rick Perry to attach an “emergency tag” to reform legislation it proposes. “If we need to get bills passed, the governor ought to give them priority,” Ellis said. Citing growing concerns about the state’s criminal justice system, the Texas Court of Criminal Appeals established the 13-member unit in June. Its first meeting was held in the CCA’s courtroom. In addition to state legislators, the TCJIU’s membership includes judges, prosecutors, criminal-defense attorneys, a representative of Perry’s office and others. CCA Judge Barbara Hervey, the unit’s chairwoman, made it clear that education will be one of the group’s goals. “First and foremost, we need to educate everyone in the Texas criminal justice system with an eye toward improvements and to get everyone on the same page,” Hervey said. One of Hervey’s goals is to improve the reliability of DNA laboratories. To accomplish that, Hervey wants to create a traveling DNA lab to conduct spot inspections at labs around the state. According to Hervey, the mobile lab could work much like a local health department, which makes unannounced visits to restaurants to inspect their premises. Hervey said that Michael Bromwich, who served as an independent inspector for the problem-plagued Houston Police Department Crime Lab, has agreed to help develop the protocol for the traveling lab. Bromwich, a partner in Fried Frank’s Washington, D.C., and New York City offices, did not return a telephone call seeking comment before presstime Aug. 7. As proposed by Hervey, the traveling lab would work under the auspices of the Texas Forensic Science Commission, a nine-member body the Legislature created in 2005 to oversee the state’s crime labs. “Every single person in the Legislature that I’ve spoken to says it’s a good idea,” Hervey says in an interview. “I’m going to take the bull by the horns and get a bill drafted.” Seeing Is Believing Ellis told the TCJIU members that his legislative agenda will include addressing problems with eyewitness identification. Of the 33 persons who’d been exonerated in Texas as of Aug. 1, 27 or 82 percent of the wrongful convictions involved eyewitness identification, he said. The exoneration total that Ellis used did not include Steven Charles Phillips, who was exonerated Aug. 5 in Dallas of 1982 and 1983 convictions for a series of rapes. [ See "Witnesses to the Prosecution," Texas Lawyer, June 9, 2008, page 1.] In an interview, Ellis declines to discuss specifics of any bills he might sponsor dealing with eyewitness identification. In 2005, Ellis introduced S.B. 663, which would have required the person who administers a photographic or live lineup to show the photographs or the live lineup participants sequentially, rather than simultaneously. The bill, which died in the Senate Criminal Justice Committee, also would have required the person administering a lineup to be unaware of which member of the photographic array or live lineup is the subject in the case. The meeting also featured a presentation by Barry Scheck, co-director of New York’s Innocence Project, on the use of a computerized photo lineup program. With the high-tech software program, photo lineups can be downloaded onto a laptop computer that law enforcement can take to a witness in the field, Scheck said. Scheck said the computer makes an audio or video recording as the witness goes through the photo array so there will be some form of documentation of the identification procedure. Also in the computer is information about the witness, he said. That includes the witness’ name, his or her description of the suspect, the distance the witness was from the suspect at the time the crime was committed, and whether the witness was under the influence of drugs and alcohol. For those law enforcement agencies that prefer less high-tech procedures, Scheck suggested the folder method. With that method, the person administering a photographic lineup places each photo in a separate folder, Scheck said. The witness then looks at the photo in each folder separately. The TCJIU’s next meeting is scheduled for Sept. 25. “In Austin” is a weekly column focusing on law and politics in Texas’ capital.

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