Tuesday, April 19, 2005

Protecting the Innocent

State Sen. Rodney Ellis is trying to establish an Innocence Commission in Texas with real powers. I'm not exactly sure how it would work, but anything is better than nothing, in my opinion. Texas has a shameful history of dealing with claims of actual innocence, even executing some despite knowing that faulty scientific evidence was used to secure their conviction and sentence.

A few years ago, Texas passed a bill that provides for post-conviction DNA testing. Unfortunately, a lot of judges are doing everything they can to deny testing under the law, and the legislature has already amended it to make it more difficult to get the testing. As it stands today, a defendant must, among other things, establish by a preponderance of the evidence that he would not have been convicted if the proposed DNA testing had produced exculpatory evidence that could have been presented at trial. When you live in a state where the highest criminal court has actually ruled that exculpatory DNA tests on the semen found inside a murdered rape victim's body didn't establish the defendant's innocence because the victim could have been a slut (sometimes referred to as the "unindicted co-ejaculator theory"), you can bet that a lot of courts are going to decide that almost no one has the right to testing. This is a disgrace.

Humorous sidenote to a serious issue: I once represented a defendant charged with assaulting a man during a brawl at a party. Our defense was that our client hadn't participated in the brawl and that the complainant had no way of reliably identifying our client as one of his attackers--he had been using drugs all day, he suffered a head injury, and he had told numerous conflicting accounts of the incident to the police and the hospital staff who treated him. In closing arguments the prosecutor actually said, "He doesn't have a defense. He's not saying it was self-defense or defending others. His 'defense' is 'It wasn't me.' That's not a defense." So, according to this DA, innocence is not even a defense in the State of Texas. Thankfully, the jury disagreed, and found our client not guilty.

4 Comments:

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9/12/2005 10:04 PM  
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9/13/2005 4:48 AM  
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