In Light of the Evidence

John Whitmire is making his third attempt to streamline the appeals process for inmates who may be exonerated by improved forensic techniques.
Tue February 5, 2013 3:00 pm

In 1987 Michael Morton was convicted of killing his wife, Christine. He served nearly twenty-five years in prison before he was exonerated, a saga that Pamela Colloff documented last year in her two-part series for Texas Monthly , “The Innocent Man.” This week, the state of Texas is holding a court of inquiry in Williamson County to determine whether Ken Anderson, the district attorney who prosecuted Morton, should face criminal charges for possible misconduct such as withholding evidence that could have proven Morton’s innocence and spared him the ordeal.

Among the people keeping an eye on the court of inquiry is John Whitmire, a Democrat from Houston and chair of the Senate’s criminal justice committee. “It’s just a real tragedy that we’re all seeing played out,” he said Tuesday, after the Senate adjourned for the day. Pamela Colloff is also covering the court of inquiry, and her first dispatch makes it clear that “tragedy” is not an overstatement:

What were the nearly 25 years he had spent behind bars like, Hardin later asked Michael? “Brutal,” Michael replied. “But after a couple of decades I got used to it.”

The day before, Whitmire had filed a bill that would allow courts to grant applications for habeas corpus on the basis of relevant forensic evidence—not new forensic evidence, exactly, but evidence that may be newly understood in light of advances in forensic science. State law already provides for habeas corpus to be granted in cases where DNA evidence is available and may be retested. The new bill essentially extends that logic to other types of physical evidence. As it stands, courts aren’t prohibited from considering such requests, but neither are they encouraged, and inmates are generally only allowed to apply for a writ of habeas corpus once.

This marks the third time Whitmire has filed legislation that would make the process easier. The previous efforts, in 2009 and 2011, fizzled. Whitmire, looking back, said that although they might simply have run into a traffic jam in the House of Representatives, another factor was that prosecutors typically oppose them. “They just don’t believe it’s necessary,” he said. “Obviously, I strongly disagree.”

Maurice Chammah, reporting for the Texas Tribune , explains that some critics of the legislation would go even farther than that; in such matters opponents often argue that reforms will encourage inmates to file “frivolous” appeals. Still, Texas has exonerated dozens of people on the basis of DNA evidence since 1989, when the Innocence Project , a national organization, began working on such cases. And as Texas Monthly ’s Michael Hall explained in his 2010 story “Weird Science,” Texas prosecutors have historically relied on a number of forensic techniques, such as outdated arson science and the use of sniffer dogs, that have room for improvement

If [Deputy] Keith Pikett, Quincy, Clue, and James Bond [the dogs] were to appear on CSI, he would be quirky, they would be lovable, and the suspects would be 100 percent guilty. But can dogs—which are reliably used to track criminals and sniff out drugs and bombs—actually match scents in paint cans in a parking lot? We don’t know. Various states have used scent lineups, but there’s little science to back them up. Quincy, Clue, and James Bond had never had any standard training, and they had never been certified. Pikett (who declined to be interviewed for this story) had no specialized forensic training either, and his protocols and methodologies, which he developed himself, were primitive at best. “A gypsy reading tea leaves and chicken bones is probably as reliable as a dog doing a scent lineup,” Steve Tyler, the current district attorney of Victoria County, told me. Yet Pikett worked on more than two thousand cases, helped indict more than one thousand suspects, and testified in forty cases as an expert witness before retiring this past February.

A more streamlined appeals process in cases where forensic evidence is newly relevant might have done little for someone like Morton, whose long-awaited exoneration was partly based on evidence that had nothing to do with forensics (hence the court of inquiry). And judges and prosecutors are unlikely to welcome Whitmire’s latest effort. With regard to wrongful convictions, though, they’re seldom the ones who face the greatest harm.

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