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House Shows Support for Innocence Commission Bill

UPDATED: The House on Tuesday endorsed a bill that would create a state panel to investigate wrongful convictions. Similar legislation has been defeated in the past, but this time it has drawn supporters many consider unlikely.

By Maurice Chammah, The Marshall Project
Senators John Whitmire, D-Houston, left, and Rodney Ellis, D-Houston, congratulate Michael Morton, right, at a court hearing in Georgetown on April 19, 2013. That day, a judge issued an arrest warrant for former Williamson County District Attorney Ken Anderson, after finding probable cause to believe Anderson withheld critical evidence in Michael Morton's 1987 murder trial.

Updated, April 23, 12:32 p.m.:

An innocence commission that would investigate wrongful convictions moved one step closer to being created Tuesday after House members tentatively approved House Bill 166.

The measure, by state Rep. Ruth Jones McClendon, D-San Antonio, would create the Tim Cole Exoneration Review Commission.

"We are putting people in prison for crimes they did not commit," McClendon told lawmakers. "This is a shame."

The bill, which will still needs to pass a third reading in the House, would head to the state Senate after approval. Similar legislation made it this far last session, but was voted down late in the process.

State Rep. Steve Toth, R-The Woodlands, asked McClendon to tell lawmakers that the bill would save the state money, because imprisoning innocent people costs the state every year, and he said that after initial misgivings he worked with her to make sure the bill would not allow the proposed commission to "go on a fishing expedition."

“Jesus said love mercy and do justly,” Toth concluded, “and this bill does that.”

Before getting endorsed by acclamation — with shouts of "aye" and applause by numerous House members — McClendon and other supporters of the bill faced numerous questions from state Rep. Larry Phillips, R-Sherman. He expressed concerns that the commission’s findings would be used in criminal and civil proceedings. “Nothing in here requires that a prosecutor or judge or defense attorney have the right to appear before the commission," he said. "You have this part where you're trying to punish people."

"If you uncover wrongful acts," answered state Rep. Joe Moody, D-El Paso, a supporter of the bill, "those things should be put in the public eye."

Phillips also said he thought the bill would lead to costs that have not been accounted for, because the bill calls for the Legislative Budget Board to provide research to the commission. The bill's supporters responded that the money would come from various grants and other sources. 

Original story, April 23:

A bill that would create a state panel to investigate wrongful convictions will go before the state House on Tuesday.

In a session of high-profile debates over wrongful convictions, the bill has garnered supporters that many would consider unlikely, including Texas Supreme Court Chief Justice Wallace Jefferson.

House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, would create an “exoneration review commission” named after famed exoneree Tim Cole. Members, appointed by the governor, would investigate wrongful conviction cases, identify why wrongful convictions occur, and examine appeals filed with the state’s courts for evidence of ethical violations by attorneys and judges.

Opponents of the bill have said the commission would become politicized and mired in bureaucracy, distracting the state from other much-needed criminal justice reforms. A similar bill has been filed every session since 2003, and a version McClendon filed in 2011 was narrowly defeated after fierce debate on the House floor. 

At a press conference Monday, McClendon told reporters, “We are putting people in prison for a crime they did not commit, and this is a shame.”

Nationally, Texas ranks third for the number of proven wrongful convictions, according to the Center of Wrongful Convictions at the Northwestern University School of Law.

State Sen. Rodney Ellis, D-Houston, who authored a companion bill in the Senate, SB 89, attempted to drum up support for the measure Friday at the conclusion of the court of inquiry for Williamson County state district Judge Ken Anderson, who was accused of withholding evidence that led to the wrongful conviction in 1987 of Michael Morton for the murder of his wife. Anytime a person is wrongfully convicted, Ellis told Morton in front of reporters Friday, “there ought to be probative questions asked.” Ellis' version of the bill would include appointments to the commission by statewide organizations representing prosecutors and defense attorneys, as well as law school innocence clinics.

In a column in The Dallas Morning News on Monday, state Rep. Jeff Leach, R-Plano, urged passage of the House bill, which he co-authored with McClendon. “I believe the most basic duty of government is to protect innocent life — from the womb to the tomb,” he wrote, “which is why I am as passionate about protecting innocent defendants as I am about protecting the unborn.”

At his biennial speech in front of the Legislature last month, Texas Supreme Court Chief Justice Wallace Jefferson voiced support for the innocence commission. "Wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free," he told lawmakers. “They leave us with the distinct impression that we today suffer from a systemic deficit in our collective approach to the way we decide how to administer criminal justice.”

The Texas District and County Attorneys Association, in a legislative update last month, noted the support the bill has picked up since 2011, when many Republicans opposed the measure. “Criminal justice progressives and death penalty opponents must be giddy at the irony of finally getting support from the political right for their pet cause," the group wrote.

Several lawmakers who fought the bill in 2011, however, continue to oppose it. State Sen. Joan Huffman, R-Southside Place, a former prosecutor and judge, told The Texas Tribune in October that there are enough safeguards in place to prevent wrongful convictions. “I certainly understand and appreciate the need and obligation we have to get this right,” she said. “But I do not believe this would be anything other than a place for people to rant and rave about what they don't like about the criminal justice system."

When the bill was debated in 2011, state Rep. Tryon Lewis, R-Odessa, said the commission's duties would be best handled by judges. "If we don't do that ... what happens is we get politics," he said. "I think it's very important to not have a politicized process where advocacy groups can go and participate, and we just can do this within the judiciary."

Jeff Blackburn, chief counsel of the Innocence Project of Texas, had initially opposed the bill for the same reasons, pointing to North Carolina, where a similar innocence commission established in 2006 has been pulled into controversy as prosecutors try to limit access to defendants who initially pleaded guilty to their crimes. In Florida, a commission founded in 2009 by the state’s Supreme Court had its legislative funding vetoed by Gov. Rick Scott in 2012. “I think anybody should be naturally distasteful of yet another commission on paper that will have a lot of the wrong people on it,” he said.

But Blackburn has decided to support the bill after working with the Texas Forensic Science Commission, a similar statewide body, on a review of arson cases for potential wrongful convictions. “When you have a place you can talk at, and people to talk to, it creates a new dynamic,” he said. “Whatever problems may happen, the good would outweigh the bad and this would create a vehicle for constructive discussion.”

Other bills filed this session aim to decrease wrongful convictions with more specific policy changes. SB 87, also by Ellis, would require police to record interrogations of suspects in custody for violent crimes, which advocates say will help in cases involving false confessions. SB 344, by state Sen. John Whitmire, D-Houston, would explicitly allow judges to order new trials in cases in which the science that led to the original conviction has changed. Several bills pushed by Morton aim to require prosecutors to share their materials with defense attorneys and extend the statute of limitations for filing grievances against prosecutors whose work has led to a wrongful conviction.

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