The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors

I was amazed to read that, at Hank Skinner's hearing before the Texas Court of Criminal Appeals seeking DNA testing under Chapter 64 of Texas' Code of Criminal Procedure, the State argued that the Legislature didn't intend to grant relief in situations like this one. In point of fact, and as somebody paid by the Innocence Project of Texas to lobby on behalf of the bill I can say this with certainty: Skinner's case was not only cited in testimony surrounding the bill, his US Supreme Court victory essentially made passage of SB 122 (Ellis/Gallego) expanding access to DNA testing a fait accompli. After that, prosecutors at the capitol seemed to give it up as a lost cause.

In Skinner's federal appeal, the US Supreme Court ruled in his favor to say that if he were denied DNA testing under state law, he could sue under the federal Sec. 1983 civil rights statute (which is especially critical since Texas has no comparable state cause of action for civil rights abuses, though the state does have a special chapter of the Code of Criminal Procedure providing for post-conviction access to DNA testing).

So in the wake of Skinner's US Supreme Court victory, Texas legislators were faced with a choice: They could retain restrictive language insisted upon  by prosecutors in Texas' 2001 DNA testing statute, giving them unilateral grounds for objecting to tests. But if they let prosecutors keep that power, local taxpayers would find themselves on the hook for expensive, time consuming federal civil rights litigation. It was in that context that the Texas Legislature limited prosecutors' discretion to oppose such "Chapter 64" motions, at least when there's a chance it could prove innocence, a move which has already cleared the way for other exonerating DNA testing.

The most famous (notorious?) example may be Williamson County DA John Bradley fighting Michael Morton's DNA testing motion tooth an nail for 6 years before the motion was finally granted and the results cleared Morton's name. Michael Morton was finally granted DNA testing not because John Bradley suddenly saw the light on the road to Damascus, but because the law changed and the grounds on which he'd previously objected to DNA testing under Ch. 64 suddenly vanished. Readers may recall rookie McLennan County DA Abel Reyna had to learn that lesson as well, flat out misunderstanding the law and his own authority before somebody finally explained it to him.

Similarly, consider Kerry Max Cook, a Tylerite who spent 20 years on death row for a 1978 murder, ultimately bartering his freedom for a guilty plea in order to prevent a fourth trial, facing prosecutors who once again said they would seek the death penalty. (Maybe it's happened before, but Grits knows of no other guilty plea to a capital murder where the defendant walked away free essentially for time served - not if responsible prosecutors honestly think them guilty of a heinous act.) At the time Cook went free, DNA testing still a relatively new technology, certainly for East Texas courts and even the Court of Criminal Appeals (this was pre-Roy Criner). Some time later, DNA testing ultimately exonerated him, but never the courts. Even so, as a practical matter Kerry Max Cook couldn't pursue post-conviction DNA testing necessary clear his name formally through the habeas corpus process until recently because of virulent, Bradley-style opposition from a succession of local Smith County DAs. The possibility only glimmered anew after SB 122 stripped away the means by which Smith County prosecutors and judges (in this case kinda the same thing) could prevent him from exposing, with finality and legal certitude, his false conviction as a capital murderer.

So, to return to Mr. Skinner, it's a relief if not a surprise to hear that questioning from the Court of Criminal Appeals seemed to favor liberal access to DNA testing. These quotes were recorded in an account from David Protess at the Huffington Post:

• Judge Elsa Alcala: " [The evidence against Skinner] is not overwhelming. It's circumstantial... If you had tested this... 10 years ago, we would have had results 10 years ago. "
• Judge Cathy Cochran: "Why not just lay all this to rest by doing the DNA quickly? We've had some rather embarrassing incidents in the last couple of years." [There have been 47 DNA exonerations in Texas.]
• Judge Michael Keasler: "Prosecutors should be testing everything... You ought to be absolutely sure before you strap a person down and kill 'em."

Judge Keasler's comments are particularly notable as he more frequently votes with Judges Keller and Hervey on the court's more extremist right wing. Judge Alcala so far ranks among "moderates" on the court, to the extent there is such a thing. Judge Cochran's comment is also notable because she's so often a swing vote among competing conservative factions. Counting heads, if she and Keasler side with Skinner, Grits would offer an educated (perhaps obvious) guess that the ruling will go his way. Reported Brandi Grissom at the Texas Tribune:

Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.

"Prosecutors should be testing everything anyway," Keasler said.

Ouch! That was NOT the response Mr. Mitchell was looking for from Judge Keasler!

Am I saying Hank Skinner is innocent? I have no idea. Will I be surprised if DNA evidence inculpates him? No more than I would if it exculpates. I agree with Judge Cochran that "[The evidence against Skinner] is not overwhelming. It's circumstantial." So why not test? And as the Legislature understood, if the CCA rules against Skinner, the US Supreme Court has said he can file a Sec. 1983 civil rights suit and it's likely a federal judge would order the testing down the line, anyway. That's why, in this non-lawyer's opinion, Skinner's case should be a no-brainer for the Court of Criminal Appeals, not to mention an object lesson for Texas prosecutors on how they approach post-conviction writs and DNA testing going forward.

The worst-case scenario is executing Mr. Skinner, testing posthumously and finding out he didn't do it. Otherwise, if he is really guilty, testing removes all doubt and prevents a great deal of torment and controversy in the future for family and friends of the victim. Since the defense has agreed to pay for testing, at this point there's no good reason, legal or otherwise, not to get it over with. Judging from the media coverage, it sounds like at least five judges on the Court of Criminal Appeals will probably agree.

SCOTUS expands habeas access on ineffective assistance claims

The US Supreme Court issued an important habeas corpus decision (pdf) this week that may have implications in prominent Texas cases, and though Grits hasn't had time to read through it and digest the implications, I thought I'd at least round up the relevant links, if only so I can go through them myself soon. First, here's how Brandi Grissom at the Texas Tribune described the case:

The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.

The ruling may have direct implications for a case mentioned recently on Grits:

The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

Will is hoping the court’s ruling in Martinez will allow him to argue that he should get a new trial because both his trial lawyer and his state-appointed habeas lawyer were ineffective when they failed to track down several witnesses who have testified that the other man confessed to the killing.

See the SCOTUSBlog Wiki page on Martinez v. Ryan, good guest blogging on the subject at Sentencing Law & Policy, as well as Adam Liptak's coverage in the New York Times and notable commentary at the ABA Journal, the Courthouse News Service, and the Habeas Book Blog.

'Death row inmate's case about more than innocence'

Brandi Grissom has a story at the Texas Tribune with the same title as this post about the habeas claims of death-row inmate Rob Will, who was condemned for a 2000 murder of a Houston Deputy Sheriff. Writes Grissom:

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, U.S. District Court Judge Keith Ellison lamented that even though he was concerned Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Will’s best chance for a new trial may lie with an Arizona case that the U.S. Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

The federal case mentioned is Martinez v. Ryan, which has been heard at oral argument (see the transcript [pdf]) but not yet decided. See SCOTUSBlog's page on the case, where the "plain English" description of the case reads: "Ordinarily, criminal defendants have a constitutional right to have a lawyer appointed to represent them at their trial and during their direct appeal, but not during any subsequent post-conviction proceedings. When a state system only allows prisoners to argue that their lawyers were inadequate during post-conviction proceedings, does the defendant have a right to appointed counsel during that proceeding?"

Texas Attorney General Greg Abbott signed on to an amicus brief (pdf) opposing the right to counsel in such cases, while the Innocence Network, of which my employers at the Innocence Project of Texas are a member, issued an amicus brief (pdf) on the other side.

Setting aside the legal merits of the case, IMO there's a strong policy argument for providing counsel for more post-conviction writ claims. Quite honestly, habeas litigation is such a mess, with so many badly crafted pro se filings clogging the docket, it might relieve the courts and make the system a lot cleaner if counsel were appointed to do one serious habeas claim instead of a bunch of petty ones that the prisoner either writes up on their own or barters for some untrained writ writer to prepare. The Court of Criminal Appeals get thousands of habeas claims each year, and state laws limiting so-called "subsequent writs" (intended to reduce post-conviction litigation) mean that, if pro se litigants don't get it right the first time, often they don't get another chance later if and when an attorney tries to take a more serious shot.

In Will's case, it seems like he really did have ineffective counsel. Wrote Grissom: "In Will’s first appeal, his state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Will’s case. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers."

Providing indigent counsel for habeas writs - particularly those alleging ineffective counsel in their original proceedings, but really in most cases - would make the habeas process more of a truth seeking endeavor. In the current process, as in Will's case, too often procedure trumps substance, focusing on the bureaucratic exercise of seeking out errors by non-lawyers as an excuse to dismiss writs as rapidly as possible, if only in order to make a dent in the ever-expanding pile.

Like the pardon power, 21st century habeas corpus has been largely denuded of its ability to fulfill the function the Founding Fathers envisioned for it in the 18th. When a federal judge can write in a capital case, truthfully, that “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction,” then we've reached the point where mass incarceration - indeed in Will's case even capital punishment - rests primarily on procedural justifications, no longer moral ones.

Executing innocents still okay after SCOTUS cert denial; will Texas take them up on it?

Like Pontius Pilate washing his hands of the dispute, the US Supreme Court yesterday declined to consider the question of whether the US Constitution permits the execution of an innocent person if the government has not violated their due process rights. The issue could have been taken up in the Texas death-penalty case of Larry Swearingen, but SCOTUS denied cert (i.e., they refused to hear it). Reports Bloomberg News:

Questions about the constitutionality of executing an innocent person are a “brooding omnipresence” in federal law that have “been left unanswered for too long,” Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen’s appeal “might be the very case” for the Supreme Court “to recognize actual innocence as a ground for federal habeas relief,” Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1998, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1998, on unrelated warrants and has been in jail ever since.

Swearingen’s lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn’t considered at Swearingen’s trial and now agree that Trotter’s body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen’s arrest.

More than that, Swearingen’s lawyers say medical examiners who looked at tissue samples say Trotter’s internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has “an airtight alibi -- he was in jail when the victim was murdered.”

Imposing the death penalty on someone who isn’t guilty of a capital crime, Swearingen’s lawyers said, would violate the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process protections.

Texas authorities said strands of Trotter’s hair were found in Swearingen’s truck, and fibers matching Swearingen’s jacket, bedroom carpet and truck upholstery were found on Trotter’s clothing. Cleaning Swearingen’s trailer after Trotter’s body was discovered, the suspect’s landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

For readers interested in more detail, Jordan Smith at the Austin Chronicle last year had an excellent, detailed article explicating the new forensic evidence in the case.

The question is, can habeas corpus reviews by appellate judges only examine procedural questions or if defendants can ask for relief simply based on actual innocence, as in, "I didn't do it." The issue is most poignant in capital cases like Swearingen's where the punishment is permanent, but the implications are even more far reaching.

While it almost seems offensive to say the Constitution permits the execution of an innocent person, as Bloomberg News put it, "as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution." It remains thus with this disappointing SCOTUS non-decision. (Of course, the Constitution's authors envisioned that a robust pardon power would prevent such injustices, but Goveror Rick Perry's pardon record provides only glimmers of hope that that might happen in Swearingen's case.)

In addition to the hot-button culture-war question of whether the Constitution permits executing the innocent, Swearingen's case also implicates Texas habeas law. The Court of Criminal Appeals belatedly ordered a hearing on the new scientific evidence, which coincidentally began in Houston yesterday. Reported the Houston Chronicle:

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Depending on the outcome of that hearing, perhaps this case will give the CCA an opportunity to overturn their despicable misstep in Ex Parte Robbins.

What a remarkable case. SCOTUS chickened out on addressing perhaps the most high-stakes question in constitutional law, which leaves the matter in the hands of the Texas Court of Criminal Appeals, and thereafter quite literally at the mercy of the Board of Pardons and Paroles and Gov. Perry.

This is not the Todd Willingham case where new expert testimony was elicited at the last moment when courts and the Governor had little time to consider it. If Swearingen is executed despite hard scientific evidence of actual innocence, it will have happened following a slow, deliberate process whereby, from Washington to Austin, those responsible for ensuring the integrity of the system chose to look the other way.

CCA laments 'disconnect between changing science and reliable verdicts' it helped create

The Texas Court of Criminal Appeals yesterday ordered an evidentiary hearing in the habeas writ application of Hannah Overton, the Corpus Christi woman convicted of capital murder for allegedly forcing large amounts of salt down her son's throat. Her case was featured recently in Texas Monthly, where reporter Pam Colloff cited experts criticizing the forensics underlying the case and  concluded Overton may have been innocent. In a statement accompanying the order, Judge Cathy Cochran wrote:

The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence-scientific evidence that will hold up under later scrutiny. I have previously expressed my concern about "the fundamental disconnect between the worlds of science and of law." Ex parte Robbins, No. AP-76464, ___ S.W.3d ___, 2011 WL 2555665 at *19 (Tex. Crim. App. June 29, 2011) (Cochran, J., dissenting).

This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result--an accurate result that will stand the test of time and changes in scientific knowledge.

Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available

Grits cannot help but point out that saying scientific testimony in Robbins "was not fully informed" is quite the understatement. According to Judge Elsa Alcala's dissent in Robbins, the scientific findings in that case were "based on false pretenses of competence, objectivity, and underlying pathological reasoning, and were not given in good faith." A lower-court judge had characterized the disputed testimony as "expert fiction calculated to attain a criminal conviction." The euphemism "not fully informed" soft-pedals state misconduct to the point of whitewashing it.

Similarly, another problem in Overton's case, unmentioned by Judge Cochran but reported by Pam Colloff at Texas Monthly, was that potentially exculpatory evidence about the victim's stomach contents wasn't turned over to the defense. In any event, Colloff concluded, "A more thorough investigation would have uncovered ample evidence to suggest that [Overton's son] had an undiagnosed eating disorder, raising the possibility that he had unintentionally consumed too much salt on his own."

Stepping back from the individual case, this is an example of the CCA struggling with the misbegotten progeny of Ex Parte Robbins (discussed by Grits here , by Liberty and Justice for Y'all here, and mentioned by Judge Cochran, who to her credit dissented, in the excerpt above). Cochran's order expressed the problem particularly powerfully and succinctly: The Robbins and Overton cases highlight how a "disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased." Well stated.

Judge Cochran's conclusion could apply equally well to the Legislature as to judges, both of whom must struggle to apply antiquated statutes and legal concepts to new scientific settings: "These are not easy issues," she wrote, "but fairness both to the applicant who is serving a sentence of life without parole and to the state and the memory of the child victim demands that our verdicts will withstand the rest of time such that the guilty are punished and the innocent are not. Further, public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence." (Thank you, Judge, for saying it.)

To justify that confidence, both the courts and the Legislature must focus more on reducing or eliminating the growing "disconnect between changing science and reliable verdicts," as Cochran put it. It's good when courts acknowledge that disconnect; the question now becomes how to rationalize the law so that legal and scientific truth don't so quickly and easily diverge amidst the vicissitudes of criminal prosecutions and appeals? On that subject, the law hasn't yet caught up to the science, at least regarding post-conviction habeas writs. Maybe the Overton case will give the CCA a chance to improve their pathetic stance from Robbins, but in the meantime the Lege in 2013 should step in to clarify in the statute that junk science can still be challenged post-conviction.

How many other situations are there where, in Cochran's words, the "verdict may look inaccurate, if not downright ludicrous," in light of modern science, "But the convicted person is still imprisoned"? Nobody knows for sure. Too often, nobody in power appears particularly anxious to find out. At least in this case the court ordered further inquiry, to their credit. And the inquiry raises the profile of this legal/scientific "disconnect" that's become a recurring theme in and perhaps the central challenge confronting 21st century forensic science.

MORE: From Pam Colloff at Texas Monthly, who writes that Judge Cochran's:

statement comes in the wake of a number of high-profile DNA exonerations and reflects the court’s growing unease with the capriciousness of scientific evidence in the courtroom.

It also shows an evolution in Cochran’s thinking. Her 2002 ruling in the case of former death row inmate Anthony Graves—who was released in 2010 after eighteen years behind bars for a crime he did not commit—set Graves’s appeals back years. In the Graves case, Cochran ruled that a defendant was entitled to a qualified court-appointed attorney, but not necessarily to one who performed well.

Clearly, Cochran is deeply troubled by circumstantial cases like Hannah’s that may rest on flawed science.

On the Road to Damascus: The Conversion of John Bradley?

Saul, Saul, why persecutest thou me?

-Voice of Jesus speaking to St. Paul on the road to Damascus, Acts 9:4, KJV

Just bizarre: Like Saul's conversion on the road to Damascus, Williamson County DA John Bradley claims to have suddenly seen the light after Michael Morton's DNA exoneration. He now plans to repent his sins and henceforth will walk the path of righteousness, we're asked to believe. Brandi Grissom at the Texas Tribune has a remarkable and lengthy story today featuring Bradley eating humble pie over the Michael Morton DNA exoneration. The article opens with the line, "John Bradley is a man evolving." I hope and pray that's true, but this "evolution" is also conveniently timed as the DA approaches a tough primary challenge.

In the Trib story, Bradley describes his former vision of the prosecutor's role literally as that of a "predator": “I always felt like I was swimming among sharks,” he said. “And you had to defend yourself, and you have to be the same predator back.” I've never seen a prosecutor openly compare their role to a "predator," usually aiming such inflammatory language toward their adversaries (as Bradley more comfortably does in the first half of the quote). But it's a revealing statement, nonetheless.

If Bradley-the-prosecutor cared little about building relations with the local defense bar, the story tells us, he certainly knew which relations to develop to advance his political career:

As then DA Ken Anderson's first assistant, "Bradley developed a close relationship with his boss. They co-wrote two law books. Under Anderson, he began working with lawmakers at the Capitol, just a 30-minute drive south of Georgetown. When Gov. Rick Perry appointed Anderson as a state judge in 2002 he also appointed Bradley to take over as district attorney."

So we've got a self-described "predator" who came to Williamson County from Houston with the mentality of a shark who treated the small pond full of perch and catfish in the defense bar essentially as prey while spending his spare time currying favor with officials in Williamson County and Austin. Largely thanks to those powerful patrons, particularly Judge Anderson and the Governor, until now Bradley has never faced a serious electoral challenge since Perry first appointed him. (He lost the only truly competitive race he's ever run, for the the Court of Criminal Appeals in the '90s.)

Like Ken Anderson's second chair Mike Davis, Bradley attempted to shift blame and focus for the Morton fiasco onto Judge Anderson, whose situation increasingly appears untenable. (I'm quite looking forward to reading his forthcoming deposition.) But Anderson's failings don't excuse Bradley's own decisions to fight disclosure of exculpatory evidence and DNA testing that eventually exonerated Mr. Morton. Grissom provides a detailed recital of Bradley's own role in this mess for which there's no one to blame but him:

In 2005, Morton began asking the state to test DNA evidence on a number of items, including a bloody blue bandana found near their home the day after the murder.

Bradley tenaciously fought the requests. In the press, he berated the idea that DNA would lead to some “mystery killer.” And he said Morton’s lawyers were “grasping at straws.” ...

Morton’s lawyers also asked Bradley, through public information requests, for investigative materials in the case. From the time of his conviction, Morton’s lawyers suspected that prosecutors had withheld key evidence that could have caused jurors to doubt his guilt. Bradley fought that request, too, arguing it would interfere with the DNA litigation.

Eventually, Bradley lost that fight and turned over the files. Reports from the sheriff’s department showed that in 1987 investigators had several clues that pointed to someone other than Morton as the killer. There was a transcript in which Morton’s mother-in-law told a sheriff’s deputy that the couple’s 3-year-old son saw a “monster” with a big mustache attack his mother — and the monster wasn’t his father. There were reports that Morton’s credit card had been used and a check had been cashed with her forged signature days after her death. Morton’s lawyers, though, had seen none of that information during his trial. ...

While the Willingham controversy continued in 2010, the Morton case was beginning to unravel. An appeals court ordered the prosecutor’s office to allow DNA testing on the bandana found near the murder scene. In June, the test results revealed that Christine Morton’s blood was mixed with the hair of a man who was not her husband. In August, a national DNA database search matched that DNA to a felon with a record in California....

But it wasn’t just the DNA.

The court in August also ordered the unsealing of a file that was supposed to contain all of the reports from the initial investigation of Morton’s murder. During a dispute in 1987 over evidence, the judge had ordered Anderson, the prosecutor, to provide him all of the investigator’s reports so that he could determine whether there was any information that could help Morton prove his innocence.

When that file was opened two decades later, Bradley and Morton’s lawyers found a paltry six pages of police reports.

Both Bradley and Morton’s lawyers knew that there were many more pages. Despite his order, the judge was not given the transcript that included the Mortons’ son’s description of the murder or the financial transactions that occurred after Morton’s death.

For the defense attorneys, it seemed to confirm their suspicions: the prosecutor’s office had withheld critical information so they could secure a conviction. For Bradley, the development was a shocking revelation that raised serious questions about his former boss and friend.

“I fully expected that that sealed file would contradict some pretty strong accusations,” Bradley said. “It didn’t.”

In September, Travis County investigators linked the DNA from the Morton bandana to DNA found on a hair at the scene of the 1988 murder of Debra Masters Baker. The man whose DNA was on those items during the 1980s lived only blocks away from Baker and about 12 miles away from the Morton’s home.

“It’s the kind of thing that happens only in Hollywood movies,” Bradley said. "I am still awed by the combination of circumstances that came together at the right time."

Corroborating reports of a closed-door shouting match between the two, Grissom writes: "Because of the continuing investigation, Bradley won’t say whether he believes [Judge Ken] Anderson knowingly hid exculpatory evidence. But, for now, he said, their personal relationship is gone. 'It saddens me, but that’s the facts,' he said."

For Grits, the supposed transformation in Bradley's thinking brings to mind not a Hollywood story but a biblical one: The Apostle Paul's miraculous conversion from persecutor of Christians to their champion. Your correspondent was quoted at the end of Grissom's article making that allusion: "Scott Henson, who writes the well-regarded criminal justice blog Grits for Breakfast, said Bradley could demonstrate his changed perspective by joining with innocence advocates to promote reforms to the Texas justice system. 'He’s got a long record,' Henson said. 'And it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.'"

Somewhat ironically, Bradley now says, "I consider Barry Scheck a good friend," so perhaps Barry can play Ananais to Bradley's St. Paul, causing the scales to fall from his eyes and leading him toward a path of righteousness. Any such optimism regarding Bradley's newly announced conversion, though, should for now remain measured. As Christ warned Saul on the road to Damascus, "it's hard for thee to kick against the pricks."

MORE: See the transcript from the Trib's Bradley interview.

AND MORE: From Wilco Watchdog. Also, from Jordan Smith at the Austin Chronicle, "Morton prosecutor wrote the book on crime." YET MORE: From Wilco Watchdog on John Bradley's "election transformation."

McLennan DA wants law changed to restrict postconviction DNA testing

Readers may recall rookie McLennan County DA Abel Reyna declaring last month to the Waco Tribune Herald that he opposed post-conviction DNA testing because it undermines jury decisions. Rather than back off that absurd statement, Reyna is now doubling down. He seems as oblivious to the history of Texas' DNA testing statute as he has been to its actual language (he earlier opposed testing for the sole-surviving Lake Waco murder defendant but now apparently realizes he had no valid legal grounds to do so under the new statute). At least you can tell by the latest TV news story that Reyna has finally read the law, though his understanding remains dubious, at best. Reported the local ABC affiliate KVVX:

District Attorney Abel Reyna says a change in law allows convicted criminals to file unnecessary requests for DNA testing to reverse their conviction.

"Technically you have any and every defendant who ever pled to a crime or was convicted of a crime potentially could file a post-conviction DNA motion," Reyna says.

The change in Chapter 64 of the Code of Criminal Procedure could mean more money spent carrying out the requests, which are unlimited, but cost isn't the only problem worrying Reyna.

"What concerns me most as District Attorney is that there is absolutely nothing in Chapter 64 with regard to victims and their families," Reyna says.

A new motion in a case closed decades ago could mean new heartache for the family of a victim.

"A defendant could use Chapter 64 to continue to torment a victim's family," Reyna says.

The root of the problem, Reyna says, is that nothing is at stake for the prisoner who files the request. "They can just file it, and it comes back, and it's them and they can just say, 'Ah, darn,' and continue serving their sentence," he says. ...

Reyna supports post-conviction DNA testing and the justice it can yield, but he says there needs to be checks and balances to prevent abuse.

"Was there a confession? Several eye witnesses? Was it on video tape?" Reyna asks.

Those conditions should be considered, he says, on a case-by-case basis to filter out manipulation of the system.  He also says the DNA request must actually relate to the charge in each conviction.

If Reyna had been in a coma these past few years, maybe you could forgive him. But he's been mostly conscious, so he should know about all the recanted confessions and mistaken eye witnesses that litter recent history, frequently only uncovered because of the Ch.64 postconviction DNA testing he now decries. (Texas' statute first took effect in 2001 and was revised in 2011 to minimize DAs' ability to oppose testing). About a quarter of DNA exonerations include confessions or guilty pleas later proven false by DNA. Ditto, and then some, for eyewitnesses: roughly 3/4 of DNA exonerations included faulty eyewitness identifications.

Ch. 64 prioritizes DNA testing in old cases because the identifying evidence it produces is superior to eyewitness or even confessions, sometimes proving to be a corrective to those types of evidence, which have higher error rates than has been frequently understood. It should also be added that Renya's schtick about how any and every defendant in history could seek a Ch. 64 motion is absurd on its face. There is a specific set of limiting criteria in the law ensuring testing occurs only when it might be probative. Most cases don't have biological evidence and even for those that did, in most older cases the evidence wasn't retained so there' nothing to test.

Before Governor Perry signed this year's new changes into law, Texas' old DNA testing statute did allow prosecutors to object to DNA testing based on some of the grounds Reyna mentions. The problem was, prosecutors like Williamson County DA John Bradley (from whose office Reyna recruited his first assistant because he admired Bradley's shop) used those mechanisms to fight DNA testing tooth and nail even in cases where innocence is plausible, often expending far more time and resources in opposition than would be taken up just by testing the evidence. In the Michael Morton case, Bradley and Co. spent six years opposing DNA testing until the law changed and they had no choice. When the evidence was tested, it turned out Morton was innocent and the guilty man had been running free all this time, most recently living in Bastrop. (Some of the DNA exonerations in Dallas came in cases where the DA who preceded Craig Watkins, Bill Hill, had vigorously opposed DNA testing.)

Because of cases like Morton's - and for that matter like Hank Skinner's, whose request for DNA testing presently sits before the Court of Criminal Appeals following their recent stay of his execution - Texas legislators changed the law. Giving prosecutors so many excuses to oppose DNA testing resulted in unacceptable delays and denials of justice, so the Legislature streamlined the process. Morton turned out to be innocent; if Skinner turns out to be guilty, the new law will have been no less valuable, having ensured everyone can be confident, to the Nth degree, that the state has not executed an innocent man.

Yes, some inevitably will try to game the system, but in reality the number of Ch. 64 DNA cases are diminishing, or soon will be, because so few jurisdictions retained evidence from older cases and so many of those old cases have now been vetted. There are a few remaining caches of old rape kits and other biological evidence to sort through before DNA exonerations become an historical footnote, but to the extent such testing was incorporated more on the front end, those opportunities will arise less and less often.

I've never seen hard data on the results from Ch. 64 motions, but on the morning the bill Reyna is complaining about was heard in committee at the Texas Legislature, I recall speaking to Michael Ware, an attorney who at the time (he's now in private practice) headed the Conviction Integrity Unit for the Dallas District Attorneys office. That division conducted a large-scale review of old DNA cases in conjunction with my employers at the Innocence Project of Texas, and according to Mike, the cases where they commissioned testing came back roughly 1/3 each into three categories: Excluding the defendant as a suspect (i.e., exonerating them), proving their guilt, or inconclusive. So in a majority of Ch. 64 cases, if those estimates can be generalized, you wouldn't see an innocent person walk free. But after debating the issue for years, on the advice of the Tim Cole Advisory Panel on wrongful convictions, the Legislature decided it's worth blowing by critiques like Mr. Reyna's to insist on testing for the sake of people like Mr. Morton who're innocent, imprisoned, and have no other hope for salvation.

In other words, the state for nearly a decade since Chapter 64 first became law has been having the debate Mr. Reyna now wants to engage in. He's just shown up late for the party, after the topic's been vetted and the decisions have already been made. The time for whining, though, is past.

My advice: Now that you've read the law and know (more or less) what it says, Mr. Reyna, just stop issuing press statements about things you don't understand and test the damn evidence.

RELATED: From the Texas Independent, "Despite deadline in new law, few Texas agencies reported count of untested rape kits."

See related Grits posts:

• McLennan DA fights DNA testing because it overrides juries
• DNA testing, innocence claims pursued in 30-year old Lake Waco murders
• New DA in Waco off to rocky start: Announces new hire who's then indicted

Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct

In a pair of extraordinary cases in Williamson and Harris Counties, prosecutors are being forced to testify regarding alleged misconduct and as one might expect, they're not universally happy about it.

In Williamson County, reported the Wilco Watchdog last night, "In a hearing on Monday morning, [visiting Judge Sid] Harle ruled against the Motions to Quash filed by Davis and Anderson, which meant the depositions [will] go forward" to determine the cause of alleged Brady violations in the wake of Michael Morton's DNA exoneration.  Further, the investigation has already begun: "Retired Detective Don Wood, the lead investigator did not challenge his deposition and testified in deposition today. However, John Bradley said a few weeks ago Wood has a "health issue effecting his memory."

Rightly notes the Watchdog, "A powerful sub-plot in this drama involves the calendar. If Davis and Anderson can frustrate the deposition process until the final exoneration of Morton is filed and perfected by the Third Court of Appeals, then the discovery in the case—including the depositions—would cease, based on a crafty provision in the AGREEMENT constructed by Williamson County District Attorney John Bradley. Given the legal games now being played to delay the process, it is becoming clear why Bradley was insistent on including this provision in the agreement."

The Statesman reports that  second-chair prosecutor Mike Davis has relented and agreed to be deposed, but District Judge Ken Anderson, first chair in Morton's prosecution, has filed an additional litany of motions hoping to stall until after time runs out on the discovery agreement with Williamson County. Reported the Watchdog::

Ken Anderson filed:
1. A Motion to Leave For File
2. A Petition for Writ of Prohibition
3. A Petition for Writ of Mandamus
4. A Motion for Temporary Injunction
5. A Motion to Quash
6. A Motion for Protective Order
7. A Motion for Stay of Discovery

Meanwhile, in Harris County, a rogue grand jury has refused to allow Harris County prosecutors to participate in their questioning of witnesses related to alleged retaliation surrounding a whistleblower who wouldn't sign off on results from the Blood Alcohol Test (BAT) van testing. But they have called four prosecutors to testify as witnesses and asked for a special prosecutor not affiliated with the Harris Couty DA's office. This could turn on DA Pat Lykos quickly and provide Murray Newman, who has already dubbed the event "Watergate on the Bayou," enough additional fodder to last the rest of his bloggerly days.