Give judges DNA-testing leeway, justice panel says

Public defender improvements and cutting crime-lab backlogs among recommendations

By JANET ELLIOTT,  Houston Chronicle Austin Bureau

AUSTIN - Giving trial judges more discretion to order post-conviction DNA testing and studying ways to improve eyewitness identification are among the dozens of recommendations released Tuesday by the governor's criminal justice advisory council.
 
The council also wants the state to look into establishing public defenders' offices and increasing the compensation to the wrongfully convicted.

Gov. Rick Perry created the council last year to find ways to better protect the rights of victims and the accused. Its first set of recommendations also called for global positioning satellite surveillance of child-sex offenders and more funding for the attorney general's sex-offender enforcement unit.

"These recommendations provide a framework that will give Texans greater confidence in a justice system designed to protect all," Perry said.

Kathy Walt, a spokesman for Perry, said the governor will work with legislators on the recommendations that require changes in law and funding.

Council member Sen. Rodney Ellis said he hopes the recommendations will be "the first step toward meaningful action."

"From enhancing public safety through better monitoring of serious sex offenders, allowing our judges the ability to grant access to potentially exculpatory evidence, reducing crime-lab backlogs, improvements in indigent defense, to eyewitness identification reform, there are quality recommendations contained in this report that, if implemented, could lead to much-needed improvements in various areas of our criminal justice system," said Ellis, D-Houston.

Quality of representation
Some of the far-reaching proposals, including the one on public defenders, came from an Innocence Projects Committee headed by Ellis. Public defenders' offices operate in El Paso, Wichita and Dallas counties; Harris and most counties pay private attorneys to represent indigent defendants.

The report said public defender offices would improve the quality of representation, especially in rural areas where there are few defense attorneys willing to accept court appointments. The cost of a statewide program would exceed several hundred million dollars a year, the report said.

Court of Criminal Appeals Judge Barbara Hervey, who led the council's Forensics Committee, said trial judges have been reluctant to order DNA testing without specific statutory authority to do so. The council recommended the law be changed to give judges discretion and make it clear that the state will incur the cost of testing unless the applicant has hired a lawyer.

"The defense would still have to show a need. But these small changes would really free up the trial courts in granting forensic testing," Hervey said.

More testing would add to the backlog at Texas Department of Public Safety crime labs, so the panel called for the state to pay for DNA testing at private laboratories. Additionally, the state should give $10,000 salary increases to the 170 scientists working for DPS and expand crime-lab facilities.

'Increasing demand'
Tela Mange, a DPS spokeswoman, said the department would welcome more crime-lab funding. She said the labs' backlog is 900 to 1,000 cases.

"More law enforcement agencies are collecting evidence that may have DNA, so there is a continually increasing demand," said Mange.

The panel also suggested establishing a pilot program at several locations across the state designed to improve the reliability of eyewitness identifications. Faulty eyewitness testimony has been implicated in a number of cases in which convictions were overturned after DNA evidence was tested.

Some states require photo lineups be shown by a "blind presenter" not involved in the investigation. Since the presenter doesn't know who the suspect is, there are no suggestive expressions or comments to influence the witness.

A pilot program also could test whether reliability improves when photos are presented to a witness one by one instead of simultaneously in a photo spread.

The panel encouraged local law enforcement agencies to use in-car audio-video recording of all traffic stops. It also called for a survey to see how many jurisdictions are videotaping the interrogation and confession of suspects in major crimes.

Email: janet.elliot@chron.com
 
Online at: http://www.chron.com/disp/story.mpl/metropolitan/3643663.html