A Case of Mistaken Identity
Mon April 23, 2007 3:59 pm

Five guys in a Dallas bar are sitting around nursing their beers when a gunman walks in, robs the place and shoots a bar patron. When the police arrive, all five guys give markedly different descriptions of the robber and wildly contrasting accounts of the event.

I heard that story nearly thirty years ago from one of the guys, who happened to be the city editor who hired me at the Dallas Times Herald. The story is illustrative of several important points: 1. Newspaper editors, especially when inebriated, are cowards who duck under tables in the presence of a gun, and 2. Eyewitness testimony is unreliable.

The latter point was affirmed today in the Texas Senate with the passage of Rodney Ellis' SB 799, which calls upon the state to develop comprehensive policies to improve the reliability of eyewitness testimony. According to the bill's analysis, "mistaken eyewitness identification of an innocent person is the leading documented factor in causing mistaken convictions that have been overturned in this country. To date, of the 28 DNA exonerations in Texas, 22 were wrongfully convicted based on incorrect eyewitness identifications." Ellis also passed SB 263, which establishes a commission to study wrongful convictions. Across the U.S., Ellis said, 200 people have been proven innocent with DNA evidence after being wrongfully convicted, often with eyewitness testimony.

Unfortunately, Lt. Gov. David Dewhurst was not on the dais when the bill was passed (I assume he was prepping for his afternoon interview with CNN on Jessica's Law), or he might have had second thoughts about his single-minded advocacy of a bill which, as first filed, created an automatic death penalty for a crime in which a child would be the chief accuser.

Luckily for the state of Texas, Dewhurst has been forced to significantly change the bill in order to get enough votes to pass it out of the Texas Senate. At the urging of many outspoken senators and prosecutors, a revised proposal calls for a minimum 25-year sentence only for enhanced cases of aggravated sexual assault, when the crime includes particularly egregious circumstances like kidnapping or use of a weapon or violence.

This change was critical to win support of prosecutors. Since approximately 80 percent of child sex abuse involves family members, an automatic 25-year prison term would dissuade families from seeking prosecution. "If a child knows that Uncle Harry is going to prison for 25 years, she's not likely to testify," a lawmaker explained to me.

Likewise, prosecutors did not want an automatic death penalty, and even questioned its constitutionality. The latest draft of the bill, sponsored by Bob Deuell, gives prosecutors the option of life without parole or the death penalty upon the second conviction for an enhanced aggravated sexual assault.

The Senate is expected to pass the bill tomorrow, with support "an inch deep," according to one lawmaker. Dewhurst has paid hard currency in political capital to get this far. He still has not announced his budget conferees, and many lawmakers believe he won't make the announcement until Jessica's law wins passage. After fighting Dewhurst for weeks, the Senate is ready to move on. Some lawmakers privately hope the House will "lock down" on its version, which prosecutors still prefer.

Good lawmakers evaluate compromise by asking themselves, "Is this the hill I want to die on?" Basically, is this fight worth the effort? A fair question for Dewhurst would be, "Why are you choosing to die on this hill?" Prosecutors haven't asked for Jessica's Law; in fact, they've been called in for damage control. Meanwhile, the state faces real intractable problems requiring leadership, from college affordability to transportation to electric industry issues. Those are hills a good leader might choose to die on.

I'm glad he's agreed to the changes insisted upon by the prosecutors. But in the process, he's lost credibility during a session in which he was well-placed to make a real difference. Gov. Perry's popularity is at a low ebb; Dewhurst's old nemesis, Tom Craddick, barely survived a speaker's race. But like the eyewitness unswayed by contrary physical evidence, Dewhurst is clinging to a false issue.

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