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Convicts and the Code 
Genetics meets criminal law in confounding new DNA statute 
John Council
Texas Lawyer 

November 13, 2001 

When the Texas Legislature hurriedly passed and enacted S.B. 3 on April 5, the law gave new hope to convicts who insist they can be exonerated through DNA tests -- not a day too soon for the wrongly convicted. But six months later, the justice that S.B. 3 was supposed to mete out in Chapter 64 of the Code of Criminal Procedure has gotten messy. Prosecutors, criminal defense lawyers and convicts alike say they are confounded by different aspects of the statute. 

District attorneys' offices in urban counties of Texas have been flooded with hundreds of requests from prisoners for DNA testing of evidence. Many of the requests are frivolous, several prosecutors say. And criminal defense lawyers report running into problems getting testing for clients with actual-innocence claims, even when defendants offer to pay for the laboratory analyses themselves. 

Consider the case of James Douglas Waller, a Dallas man who served 10 years in prison for an aggravated rape he says he didn't commit. Released on parole in 1993, he hoped he could use the new law to prove his innocence by testing DNA evidence in his case through procedures not available at his 1983 trial. 

"When the law passed, I automatically knew that it would clear my name," Waller says. "I knew if I could get it done, it would clear everything up." 

Instead, a DNA test in his case proved useless. The small amount of DNA evidence remaining in Waller's case was "consumed" during a court-ordered test at a Department of Public Safety lab in Garland, Texas, in September. The test was "inconclusive," according to court documents. 

The law limits the testing of evidence to labs run by or under a contract with the Texas Department of Public Safety or by a lab agreed to by the defense and the prosecution. 

Waller's wife, Doris, and Waller's attorney, Randy Schaffer, pleaded to a Dallas judge to let experienced scientists in California perform the testing on the delicate evidence. They had more confidence in the out-of-state lab, and the Wallers even offered to pay for the test. In the end, there just wasn't enough of a sample to go around. 

"It's almost worse than blowing it up, them destroying it when we begged them not to," Doris Waller says. "Why wasn't this worth a second opinion? Why couldn't we have gotten another expert?" 

The answer is simple, according to John Creuzot, judge of Dallas County Criminal District Court No. 4, who presides over Waller's DNA testing request. 

"They don't have any right to that under the statute," says Creuzot, who rejected the Wallers' request that the test be performed in California but approved the DPS test. "And who's to say the test would be any different?" 

In briefs on Waller's case, the Dallas County District Attorney's Office agreed to let a DPS lab test his evidence, or three other non-DPS-contracted labs in North Texas. But prosecutors were opposed to letting the California lab perform the test. 

"There is no compelling need to do so," according to the state's brief. "Sending an 18-year-old sample of biological material across the country to an unknown laboratory in California unnecessarily risks damage to or loss of the sample." 

Even though the sample could have been tested in California if the district attorney's office had agreed to it, says Schaffer, Chapter 64 gives the district attorney's office a trump card to oppose outside testing. 

"The state has the veto power, and all they have to do is keep the evidence at a DPS lab. They can just make it all go away, and it sucks," Schaffer says. "It's not the purpose of the statute. The purpose of the statute was not to allow the law enforcement lab to use up the evidence and destroy it." 

BROAD REMEDY

So far, Harris County has nearly 100 DNA requests pending because of Chapter 64, while Dallas County has about 60 requests, and Tarrant County has roughly 40, according to officials at each district attorney's office in each county. 

Several prosecutors say legitimate requests are drowning in a sea of frivolous ones. Yet some prosecutors hardly blame prisoners for making the requests. 

"I would think, if I was a defendant, I would file it," says Steve Conder, an appellate attorney in the Tarrant County district attorney's office. "It's like a free shot." 

The law leaves judges little choice but to appoint criminal defense lawyers to prisoners who claim DNA testing will exonerate them. District attorneys' offices then are required to research, locate and produce records and files that often are more than a decade old. 

NONEXISTENT FILES

"Some of them are so old, the files don't exist. And then what evidence still exists?" asks Roe Wilson, chief of the post-conviction writs division for the Harris County district attorney's office. 

Under Chapter 64, judges have little discretion over whether to appoint an attorney to a convict who requests a DNA test. To start the process, convicted applicants must provide a sworn affidavit to their convicting court asserting one of two causes: that DNA testing was either not available or technically capable at the time of their conviction; or if evidence was previously subjected to DNA testing, a newer test may provide a more accurate result. 

According to Larry Fitzgerald, a Texas Department of Criminal Justice spokesman, fliers advising inmates of the law are posted in all prison law libraries. 

Many of the requests come from defendants convicted of murder or sexual assault -- cases that are most likely to be aided by DNA tests. And many of them are pro se requests that give little guidance on what evidence may exonerate the convicts, judges and prosecutors say. 

"That's the problem with a lot of these cases. These guys can't point to any evidence. They're just sending letters saying, 'I want all of my evidence tested,' " Wilson says. "It's kind of like the point of the legislation was lost because it was written so broadly." 

But Mike Charlton, a Houston criminal defense lawyer who has handled many DNA cases, says the law was intended to be broad. 

"You can never show in advance that you're going to be entirely successful," Charlton says. "And even if you prove it, DAs historically have come up with some explanation as to why someone is guilty. The Legislature intended it to be a broad remedy." 

Even the legislator who sponsored and passed the bill says the law was intended to be broad to allow prisoners access to the courts. 

But some of the DNA test requests are a bit strange. Lana McDaniel, judge of Dallas' 203rd District Court, received a testing request from a prisoner convicted of sexual assault who later discovered he had HIV. 

"In his request, it was clear that he wasn't entitled to this. He wasn't even claiming that he wasn't the person that did do the crime," McDaniel says. "He just wanted to find out if the victim had AIDS, and he wanted to find out if he got AIDS from the victim." 

McDaniel says she appointed a lawyer to investigate the inmate's claim. And other judges find they are bound to appoint lawyers if convicts claim testing could prove them innocent. 

"I expect that a lot of these requests will be coming in because the jailhouse lawyers say you can," says George Godwin, judge of Houston's 174th District Court. 

Even indigent convicts whose rape cases involve little or no physical evidence may be eligible for appointed lawyers, Godwin says. 

"That's not going to keep the defense from asking for the DNA evidence," he notes. "I just don't see how you can get there without appointing a lawyer who is really an investigator in that sense to see what's really going on." 

HEARINGS ON DNA

Although the law's language is broad, it is not necessarily even-handed, one defense lawyer says. Once convicts and their lawyers identify the possible evidence that can be tested, the law makes it difficult for them to prove to the trial judge they have a reason for testing that evidence. 

Charlton says district attorneys have the upper hand in contested post-conviction DNA testing hearings. 

To get a test approved by a trial court, convicts must prove by a preponderance of the evidence that a reasonable probability exists that they would not have been convicted if exculpatory results had been obtained through DNA testing, and the request for the test does not unreasonably delay the execution of a sentence or the administration of justice. 

So far, DPS has only tested about 20 cases since the law was passed, says DPS spokeswoman Lorraine Ronquillo. The reason for this disparity, says Charlton, is simple: Courts are listening to the prosecutors instead of the evidence. 

"I've handled a bunch of them. In almost every one of the cases, the court looks to the DA and asks, 'Would it make a difference at trial, and would the state dismiss this case if the DNA came back [exculpatory]?' And they [prosecutors] say, 'Hell no,' " Charlton says. "And the court finds you haven't met your burden." 

But "no" may not always mean "no" -- even that's up for interpretation. Take, for example, Jessie Joe Patrick's recent post-conviction DNA test hearing in Dallas. Patrick is on death row after being convicted of murdering an 80-year-old woman during a burglary in 1989. As alleged in prosecution motions, Patrick confessed to the murder, including that he attempted to have sex with the victim. 

Karen Greene, judge of Dallas' 282nd District Court, found that Patrick didn't meet the statutory requirements for testing. Specifically, she said Patrick failed to prove that he "would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." 

Yet in an unusual twist to Greene's Sept. 21 ruling, she allowed a request by Patrick's attorney, Keith Hampton, to have the evidence tested at a DPS or DPS-contracted facility if Patrick paid for the test. 

The Dallas County district attorney's office filed a mandamus with the Court of Criminal Appeals challenging Greene's order, alleging she violated a ministerial act by entering an order that was not supported by the law. (Patrick's case is one of four death penalty cases pending at the Court of Criminal Appeals involving Chapter 64 testing claims.) 

In Greene's response to the mandamus in Bill Hill v. Karen Greene, the judge argues that the law doesn't address whether a prisoner willing to pay for a test can receive one if he or she fails to meet the statutory requirements. 

"Its effect on an inmate's ability to receive forensic DNA testing at the inmate's own expense has not yet been determined by the courts," Greene writes. 

The Court of Criminal Appeals granted leave to file a petition for a writ for Greene's mandamus on Oct. 31, which allows for briefing on the issue by the state and the defense. The CCA previously had issued a stay in the testing of Patrick's DNA evidence. 

Hampton and appellate attorneys with the Dallas district attorney's office decline to comment because the case is pending. 

HEARD IT BEFORE

The concerns with the new DNA law come as no surprise to State Sen. Robert Duncan, R-Lubbock; he has already heard most of the complaints about Chapter 64. In fact, many were discussed at committee hearings on the bill. 

But the law is working as the Legislature intended it to, he says. The statute was meant to be broad on the front end, allowing DNA test requests to get before a court, but narrow on the back end, allowing testing only for the most deserving convicts. 

"It was intended to be broad so everyone would feel like they had access to the courts," Duncan says of the bill, which made Texas the 12th state in the nation to pass a DNA testing law. "But it was intended to be restrictive on those who could get access to the test. Because if everyone could get it ... it would be a waste of resources." 

There was no way the Legislature could anticipate all the different scenarios judges now face, Duncan says. Those questions are for the appellate courts to decide. Although he's monitoring the success of the new law, he doesn't see any immediate need to modify it. 

Duncan says he's unaware of any prisoner who's been freed by a Chapter 64 appeal, but that may be because the law is still relatively new. 

"I think the goal is certainly worth the cost, even for the most conservative staunch criminal justice advocates," Duncan says. "Those [conservatives] certainly can't disagree that our system fails if we are convicting innocent people." 

As for James Douglas Waller, he'll pursue the testing of hair evidence that remains in his case -- even though prosecutors conceded at his 1983 trial that the hair evidence probably did not come from Waller and was not key evidence. 

Waller, who's spent $15,000 in legal fees on his case so far, says he hasn't given up hope. 

"With the hope of God, there's always a chance. But God must have a better plan than the DNA," Waller says. "So there's got to be something else to clear my name." 

   



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