The law is named after Timothy Cole, a man who died in prison serving time for a sexual assault that DNA now proves he did not commit.  As a result of an investigation of Cole’s case by the Innocence Project of Texas, Cole’s family and the primary rape victim, Michele Mallin, were represented by Jeff Blackburn, Chief Counsel for the Innocence Project of Texas at a hearing that ultimately led to Cole’s exoneration.  According to Blackburn, the passage of the Tim Cole Act “shows the power of truth in a courtroom to bring about justice through the system.  It also shows that the Texas legislature and the Governor are ready to do the right thing for the most deserving of this state.”

Also deserving credit for the passage of the Tim Cole Act is Lubbock attorney Kevin Glasheen, who is representing several Texas exonerees on their compensation claims.  Glasheen worked diligently with Texas legislators including Representative Rafael Anchia, Senator Rodney Ellis, Senator Robert Duncan, and Representative Pete Gallego to push the bill through the legislative process.

The Innocence Project of Texas would finally like to thank Governor Perry for his decision to sign this monumental Act into law.   Later today, Cory Session, Timothy Cole’s brother and family spokesperson, and Ruby Session, Cole’s mother, will be visiting the Governor’s Office and meeting with the legislators to thank them for their work on behalf of Texas’s wrongfully convicted.

When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.

Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.

I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.

Chatman’s story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.

As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.

The fault in Chatman’s case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.

Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.

Chatman’s case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?

For years, Texas has led the nation in the number of executions. Why don’t we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?

For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.

I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let’s get this system fixed.

To view the piece on the Dallas Morning News website, click here.

Named for Cole, who was posthumously exonerated of a 1985 Lubbock rape after serving 13 years in prison, Senate Bill 1736 would provide compensation for family members of wrongfully convicted Texans and increases compensation levels for other exonerees.

“The Tim Cole case should serve as a wake-up call to Texas,” said state Sen. Rodney Ellis, D-Houston, who sponsored the bill with Sen. Robert Duncan, R-Lubbock. “It is time to get our house in order and enact reforms that, wherever possible, can help avert miscarriages of justice before they happen.”

Duncan agreed: “Tim Cole’s untimely death was not in vain. Criminal justice in Texas will be more fair and compensation for those wrongly convicted will be more adequate because the Legislature responded to Mr. Cole’s terrible and sad struggle.”

The bill will increase the lump sum compensation for all exonerees from $50,000 to $80,000 per year of incarceration, including time spent in city or county jail. Current compensation only applies to time in a state prison cell.

Under the measure, a person who receives a subsequent felony conviction loses their eligibility for compensation, as does current law.

The bill allows lump sum compensation of $25,000 per year spent on parole or registered as a sex offender.

The measure also allows the lump sum compensation to pass to the family in the event the innocent person dies before release, as Timothy Cole did. And it creates lifetime annuity payments to the exoneree based on a present value of the lump sum compensation, annuitized using a five-percent interest rate and payable in equal monthly installments using actuarial factors.

The bill also provides up to 120 hours of free tuition if the claimant desires to attend a state college.

Click here to read the rest of the Statesman’s blog entry.

Here’s a status report on what’s happening with bills supported by the Innocence Project of Texas at the 81st Texas Legislature.

Senator Rodney Ellis and others have been proposing innocence-related legislation at the Texas capitol for nearly a decade, but I don’t think there’s ever been more momentum for reform than we’re seeing in 2009. Thanks to an amazing effort by many people, including our allies at the Justice Project and the Criminal Defense Lawyers Association and the incredibly high-impact lobby day with exonerees during the Timothy Cole hearing in February, many bills we support were filed at the Texas Legislature before last Friday’s bill filing deadline. Now that we know what legislation we’re supporting (including bill numbers, etc.), I wanted to give everybody an update regarding innocence-related reform bills we support:

• SB 115/HB 788/HB 498: Innocence commission (Ellis, Thompson, McLendon)
• SB 116/HB 4090: Recording interrogations (Ellis, Farrar)
• SB 117/HB 3583: Improving eyewitness ID procedures (Ellis, Gallego)
• SB 260: Requiring pretrial reliability hearing for informants (Ellis)
• SB 1681: Corroborating jailhouse informants (Hinojosa)
• SB 1976/HB 3579: Expanding post-conviction writ access to cases with new scientific evidence (Whitmire, Gallego)
• SB 2276 Disallowing the parole board from making rules penalizing claims of actual innocence (Ellis)
• SB 2014/HB 1736: Compensating the falsely convicted (Duncan, Anchia)

Collectively, this represents a significant reform package with good chances of passage. Of course, now begins the more difficult part as each bill works its way through the legislative process. Fewer than 20% of proposed bills pass each session at the Legislature, but innocence issues have a lot of momentum.

The committee process in both chambers is beginning nearly a month later this year than in previous sessions, resulting in a very compressed calendar. The policy-oriented Senate bills may be heard in committee as soon as Tuesday, March 31 in the Senate. The compensation bill will likely move first through the House. Here’s a brief run-down of the legislation we support:

SB 115/HB 788/HB 498: Innocence commission (Ellis, McLendon, Thompson)

The media and many at the capitol still consider this the signature bill of the innocence package. Last session, a version passed the Senate but died in the House Criminal Jurisprudence Committee. Rep. McLendon has filed a slightly different bill from Rep. Thompson and Sen. Ellis. McLendon’s bill was heard last week in a House subcommittee and Thompson’s was heard by the same body Monday morning.

SB 117/HB 3583: Improving eyewitness ID procedures (Ellis, Gallego)

This is the legislation the opposition is most focused on, and it’s been the subject of intense negotiations. Many observers expect some version of it to pass. Rep. Gallego, who sponsored the bill up in the House, is chairman of the Criminal Jurisprudence Committee where many of the main, innocence-related policy bills will go. The Court of Criminal Appeals’ Criminal Justice Integrity Unit, on which IPOT boardmember Gary Udashen participated, urged the Legislature to make eyewitness ID reform its top innocence-related priority.

SB 116/HB 4090: Recording interrogations (Ellis, Farrar)

Aimed at preventing false confessions, we have excellent cases for promoting this: Most notably Ochoa/Danziger. Debate over this bill could end up being mostly about cost. I was happy Rep. Farrar filed the bill in the House at the last minute, so the bill has sponsors in both chambers.

SB 260: Requiring pretrial reliability hearing for jailhouse informants (Ellis)

This bill would require enhanced  pretrial disclosure by the state about jailhouse informants and a reliability hearing before their testimony could be used. A really strong bill. If you know of bad jailhouse snitch stories we could use at the hearing, let me know.

SB 1681: Corroborating jailhouse informants (Hinojosa)

This bill would require corroboration to obtain a conviction based on jailhouse informant testimony. This was a key recommendation of the California Commission on the Fair Administration of Justice.

SB 1976/HB 3579: Expanding post-conviction writ access to cases with new scientific evidence (Whitmire, Gallego)

This bill would expand post-conviction innocence writ access beyond DNA cases to cases where new scientific evidence unavailable at the time of trial is available to prove innocence. We’re hoping this is a way to get bad arson cases and other false convictions based on debunked or outdated forensics back into court on actual innocence claims. (N.b. The language will likely be changed; it appears Legislative Council made a drafting error that needs to be clarified.) For this bill, the two relevant committee chairmen are the bill sponsors – John Whitmire in the Senate and Pete Gallego in the House. That gives this legislation a strong foundation and a good chance of passing.

SB 2276 Disallowing the parole board from penalizing claims of innocence (Ellis)

This legislation would disallow the parole board from having any “rule, policy or practice” that would require someone who claimed innocence at trial and throughout the appellate process from being denied parole because they refuse to accept responsibility for the offense for which they were convicted. Exactly this happened to many Texas exonerees and IPOT can provide compelling exoneree testimony for the committee.

SB 2014/HB 1736: Compensating the falsely convicted (Duncan, Anchia)

The compensation bill, which was filed with bipartisan support in both chambers, would pay $80K per year served in an upfront payment, and another $80K per year in an annuity paid out over time. It will also include provisions for posthumous compensation in cases like Timothy Cole’s.

So this is the foundation for the proactive part of our legislative session. In addition, some members have promoted other good bills we will support. (For example, I testified last week on behalf of IPOT in favor of HB 293 by Dutton which would require expunction of records in cases where the person was pardoned, acquitted, or the case is dismissed.) But these will be the main bills we’re watching.

Congratulations to everyone supporting innocence reforms for a promising start to the 81st Texas legislative session. The next 60 days will tell the tale and I’ll be sending out updates as we go along.

Best regards,

Scott Henson
Policy Director, Innocence Project of Texas

House Bill 1736 would increase the lump sum that exonerees could receive from the state to $80,000 for each year of imprisonment. Exonerees are currently eligible for $50,000 per year.

Exonerees would also receive a monthly annuity payment based on an amount equal to their lump sum payment spread out over their lifetimes, as well as 120 hours of tuition at a technical, community or four-year college.

Furthermore,

HB 1736 includes money for mental healthcare and a provision that, in the event of the exoneree’s death, his or her family becomes eligible for the lump-sum compensation. Currently, the prisoners’ claims die with them.

What’s more, the Bill could actually present a financial savings for local jurisdictions.

One condition of the existing and proposed law is that, when exonerees seek statutory compensation, they forfeit their right to a civil-rights lawsuits.

Many exonerees opt for lawsuits rather than compensation because the compensation is inadequate, he said.

“After income taxes, many [exonerees] have debts and attorney fees, and that takes down the amount they actually receive quite a bit,” Glasheen said. “I think the proposed compensation is enough to convince the majority of them to settle their claims.”

To read the rest of the article, click here.  To locate the contact information for your Representative in order to express your support for the bill’s passage, click here.