Updated, April 9, 4 p.m.: The Senate Criminal Justice Committee on Tuesday passed a bill by state Sen. Rodney Ellis, D-Houston, that would require more DNA testing of biological evidence in death penalty cases.
The original version of Senate Bill 1292 included language requiring "all biological evidence" to be tested, but the version the committee approved includes only "evidence that can reasonably be used to either establish the identity of the person who may have committed the crime or exclude someone as having committed the crime," according to a statement from Ellis's office.
"We know that, sometimes, we get the wrong person," Ellis said in the statement. He added that the bill "will ensure we avoid both the possibility of the wrong person serving years on Death Row and the far worse specter of putting to death an innocent person."
Original Story: Expressing his support for a bill that would require DNA testing of "all biological evidence" before trial in death-penalty cases, Attorney General Greg Abbott said the measure would help save the state from going through years of costly appeals as defendants seek to get DNA materials tested.
"There's no reason to test these items more than a decade after the crime was committed," Abbott said Tuesday at a news conference with state Sen. Robert Duncan, R-Lubbock, and state Sen. Rodney Ellis, D-Houston, the author of Senate Bill 1292. "We shouldn't live with suspense. The family of the victim shouldn't have to through this time after time after time in order to get certainty."
In certain cases, the appeals process can last a decade or more as those convicted ask the courts to perform DNA tests on evidence. Abbott and Ellis said that testing the material before a trial takes place would make it less likely that innocent people are convicted and sentenced to death. DNA has been involved in finding the wrongful convictions of more than 50 defendants in Texas, according to the National Registry of Exonerations. Several of those defendants were exonerated while on death row.
Calling SB 1292 an "important, vital reform" for the criminal justice system, Ellis said that he hopes the requirement would decrease the number of wrongful convictions and exonerations in death penalty cases. Abbott said the bill "will help prevent the seemingly endless appeals that do nothing more than game the system."
Abbott pointed to the case of Hank Skinner, who was convicted of the murder of his girlfriend and her two adult sons in 1995. Skinner asked for DNA testing in 2000 of materials not analyzed at his original trial. In 2010, the U.S. Supreme Court stayed his execution less than an hour before he was scheduled to die, agreeing to hear arguments in his case. In November, prosecutors said that the DNA testing proved that Skinner committed the crime, though his lawyers said that a DNA lab has not yet looked at one piece of evidence and that his guilt cannot be confirmed
Ellis, who chairs the board of the national Innocence Project and has filed numerous bills related to wrongful convictions, agreed with Abbott that requiring testing before the trial would help ensure that innocent people are not executed, and he said that it would cost no more than DNA testing already does. The only difference is it will be done "up front" rather than after years of appeals paid for by the state. "The test is going to be there anyway," Ellis said. Estimates of cost resulting from the bill have not been released by the Legislative Budget Board.
SB 1292 requires laboratories run by the Department of Public Safety to complete the testing, and Ellis acknowledged that this provision could change when the bill is discussed in committee, admitting that the requirement might create backlogs at statewide crime laboratories.
Ellis also noted concerns that testing all biological evidence would be time-consuming and keep analysts from looking at the most important evidence for determining the guilt or innocence of the defendant. "We think we can address those concerns," Ellis said, adding that he did not want to worry about "unintended consequences" because in the future when it comes to dealing with forensic evidence, "there may be technologies that we cannot even dream of today."
Asked whether he thought Texas had executed an innocent person, Abbott said, "No," adding that each case is decided by 12 jurors and then reviewed by numerous judges.
Ellis maintained his support for the death penalty (he presided over three executions while acting governor in 2000) but said, "I don't know. I worry about it." Last June, he said at a Texas Monthly roundtable, "I believe Willingham was innocent," referring to Cameron Todd Willingham, executed in 2004 for an arson that killed his three young children.
"Anytime you're incarcerating a lot of people," Ellis said Tuesday, "it's a government program, and we make mistakes."