New DNA bill may prevent wrongful convictions

Posted Saturday, Mar. 23, 2013  comments  Print Reprints
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"The state will proceed."

On three occasions in 2000, while he was the president pro tempore of the Senate and was called on to serve as the acting governor, state Sen. Rodney Ellis uttered those four words that gave the go-ahead for a man to be executed.

The Houston Democrat says he had some anxious moments on receiving the calls from Huntsville, where prison officials waited to carry out scheduled executions. And he said he had some restless nights afterward, knowing people had been put to death once the governor's office gave the OK.

Although a proponent of the death penalty, Ellis is a champion of criminal justice reform. He has a record of introducing legislation to improve the system, including a law that would exempt the mentally ill from capital punishment and several bills designed to lessen the chance of an innocent person being convicted.

Last week, with the endorsement of the state Attorney General Greg Abbott, a Republican, Ellis described SB 1292, a bill he has introduced that would require DNA testing of all biological evidence in death penalty cases before trial.

As now written, the legislation calls for the testing to be done by Department of Public Safety laboratories, with the cost paid by the state. Ellis told the Star-Telegram Editorial Board Thursday that he expects this provision of the bill to undergo changes in the Criminal Justice Committee so that it wouldn't have the unintended consequence of overburdening the DPS labs.

This is one more important step in addressing Texas' hauntingly embarrassing record of wrongful convictions, but it's far from being a cure-all. The pre-trial testing, as Ellis and Abbott point out, could aid the falsely accused in being exonerated sooner and cut down the long post-trial appeals process that occurs in most death penalty cases.

For a state that has executed more people than any other -- 493 since 1976 -- it is imperative that we are as certain as humanly possible that the person being put to death is the one who committed the crime.

Ellis noted that 303 people in the United States have been exonerated by post-conviction DNA testing, 18 of whom served time on Death Row. Another 16 had been convicted of capital crimes, but not given the death penalty, he said.

Therein lies a shortcoming of Ellis' bill. Most of the cases cleared by DNA, many of them sexual assaults, were not death penalty cases, which means there may be many others wrongly accused whom the proposed legislation would not help.

That is why it is imperative that law enforcement, prosecutors and defense attorneys make full use of the science that might positively identify a suspect, or eliminate him or her. The DNA testing, along with recently enacted laws improving criminal investigation techniques like photo line-ups, will improve the system.

Ellis, board chair of the national Innocence Project, concedes that his new DNA bill doesn't and can't address all the issues of the wrongly convicted, but he is quick to point out that he will be pushing other legislation that's in the pipeline.

One of those bills (HB 166) creates the Tim Cole Exoneration Review Commission, named for a wrongly convicted Fort Worth man who died in prison. That bill, which was approved by the House Criminal Jurisprudence Committee March 12, would create and fund a body to investigate each of the exonerated cases in Texas in an effort to determine the causes that led to an innocent person being arrested, charged, prosecuted and sentenced to prison or death.

These safeguards are vital to help ensure fair and untainted justice, and the more we have the better. They should not be regarded, however, as additional planks to justify this state's defense of capital punishment.

That is still an issue Texans must continue to debate -- on both legal and moral grounds.

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