Texas House bill takes on wrongful convictions

Posted by Patrick Driscoll on

Given what is going on in Austin as we speak, I take great pleasure in calling to your attention House Bill 34, titled “Relating to measures to prevent wrongful convictions.” It takes on two of the most common factors in wrongful convictions: erroneous identifications and jailhouse snitches.

Texas has been a national leader in convicting the wrong person, producing an average of nearly one wrongful conviction a month for the past 30 years. The bill addresses two problems highlighted by two of the most notorious examples.

One involved a young Lubbock man named Timothy Cole. He was a military veteran and student at Texas Tech in Lubbock. He was convicted of forcibly raping a fellow student after she identified him in a photo lineup.

Police put a color photograph of him in an array that included five black and white photos of other African-American men. They took it to the victim in her dormitory. When she said it might be him, they basically coaxed her into expressing certainty.

This violated a number of science-based rules for photo line-ups. They should be presented by an investigator who doesn’t know who the suspect is. The suspect’s photo should not stand out as different from the others. And investigators should document the victim’s exact response.

Later, a confession by a convicted rapist and DNA test proved Cole innocent. It was too late. Cole had died in prison of a severe asthma attack. His tragic incarceration and death led to the establishment of the Tim Cole Exoneration Review Commission, a high-powered group that includes the chief judge of the Texas Court of Criminal Appeals, two state senators and the head of the Texas Forensic Science Commission.

The Commission addressed the line-up problem, mandating that all the state’s police be trained in the best line-up procedures. It also requires that those procedures be followed. When they can’t be for some reason, this must be disclosed to defense attorneys. HB 34 embodied the recommendations.

But the bill does more.

Charles Eskridge is a prominent Houston commercial litigation lawyer.  He became a volunteer member of a legal team that won the disbarment of Burleson County District Attorney Charles Sebesta, who prosecuted Anthony Graves. This is a very rare achievement.

Graves was convicted in the 1992 brutal murder of six victims including four children. He spent 18 years in prison, 12 on death row, before being exonerated. Sebesta did a number of outrageous things that led Eskridge to want to be on the Cole Commission. Among the grievances was using an unreliable jailhouse snitch.

His involvement in the case lit a fire under Eskridge, especially because he learned how the harm goes beyond the one person falsely convicted. He came to know Anthony’s mother.

“That was her oldest child,” he said. “She had issues with younger children — health and employment. Anthony was very devoted to helping her with his siblings. His 18-year absence led to serious hardships in her life.”

So Eskridge applied to be Gov. Greg Abbott’s appointee to the Cole Commission. That he was a substantial and long-time contributor to Abbott didn’t hurt.

With Eskridge’s input, the Cole Commission recommended and the new law provides rules for the use of jailhouse snitches. It requires that the defense be told of any inducements provided to the witness, a full account of the witness’s criminal history, and of any other occasions where he has served as jailhouse snitch and considerations he received.

The bill passed the House 140-3 and the Senate 30-1. Its passage received strikingly little attention in Texas, but last week was lauded in a New York Times editorial. It called the new Texas law “the most comprehensive effort yet to rein in the dangers of transactional snitching.”

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