Bill to help end wrongful convictions
We write today to praise a bill, House Bill 48, not with the full-throated enthusiasm we would have liked, but with the grateful acceptance that what has passed the Texas House and Senate has been a long time coming and is a whole lot better than nothing. It’s a significant start toward trying to improve justice in Texas.
HB 48 creates the Timothy Cole Exoneration Review Commission to examine wrongful convictions and recommend ways to make the state’s criminal justice system less prone to mistakes. The Senate unanimously passed HB 48 on Tuesday, almost four weeks after the House passed the bill on May 1 with only three votes in opposition.
The broad support for HB 48 is a welcome change from previous sessions, when attempts to create an innocence commission failed. There had been fears HB 48 was also doomed to failure when it was sent to the Senate Committee on State Affairs rather than to the more pertinent Criminal Justice Committee. State Affairs is chaired by Republican state Sen. Joan Huffman of Houston, a former prosecutor and judge who played a key role in killing similar legislation in 2013.
But HB 48 emerged from Huffman’s committee alive — if not quite intact — and easily passed the Senate. Though Huffman’s committee rewrote the bill substantially, the House, with the session set to end Monday, accepted the Senate’s changes Thursday and sent the bill to Gov. Greg Abbott for his consideration.
The Senate version of HB 48 alters the commission’s membership, most notably expanding it from nine members to 11 and removing the three judges and justices listed in the House’s version while adding an appointee of the governor and an additional state representative and senator — specifically the chair of the State Affairs Committee or a committee member of the chair’s choosing. The Senate version includes a few judicious edits, which we appreciate, and clarifies that the commission should include advisers from groups like the Innocence Project of Texas, which has studied the problem of wrongful convictions and helped win exonerations.
But the House version allowed the commission to investigate “breaches of professional responsibility or misconduct” by prosecutors, defense attorneys or judges, and gave commissioners the authority to refer any allegations of misconduct to an appropriate agency or office for further review. No such authority exists in the Senate version headed to Abbott’s desk.
Worse, the Senate version dissolves the commission after it releases its only required report on or before Dec. 1, 2016. In contrast, the House version set up the commission as a standing entity and authorized it to examine exoneration cases dating back to 1994. The Senate’s version limits the commission’s reviews to exonerations that date from 2010.
Even with the 2010 starting date, the commission will have plenty of cases to review, given Texas’ unenviable record of convicting defendants who later were proved to be innocent. There were 39 exonerations last year alone, according to The Associated Press.
But there is an irony to the 2010 start date. The case of the man for whom HB 48 is named, Timothy Cole, falls outside the Senate’s time frame.
Cole was an Army veteran and Texas Tech student who was wrongfully convicted in 1986 of rape.
He died in prison in 1999 of complications from asthma, insisting to the very end that he was innocent. DNA evidence led to Cole’s exoneration a decade later, in 2009, and he was pardoned posthumously in 2010 by Gov. Rick Perry.
Cole’s case features the leading cause of wrongful convictions: false witness identification. And it surely holds additional lessons to be learned about police refusal to consider contrary evidence when investigating a suspect and the use of questionable forensic analysis at trial.
In remarks made to the Houston Chronicle, HB 48’s primary author, Democratic state Rep. Ruth Jones McClendon of San Antonio, seemed resigned to accepting the bill as substituted by the Senate. Creating the commission is a first step, she said. Improvements can be made later.
“Next session, we can propose some changes based on the outcome of the research and evaluation done by the commission,” McClendon said. “Hopefully, the life of the commission will be extended.”
Few proposals survive the Legislature unscathed. It’s the nature of the lawmaking beast. So, sometimes better than nothing is the best thing of all. And to be fair, HB 48 is more than better than nothing; it takes a big step toward trying to prevent additional failures of justice. The support it received in the Legislature leaves hope for something stronger next time around
Like McClendon, we’ll take it.