Naked City

According to a new report from the Texas Defender Service, without significant reforms to Texas' capital punishment system there will remain a "palpable risk" that innocent defendants will wind up – or remain – on death row, because the state's criminal justice system "evades sufficient scrutiny, lacks meaningful judicial review, and is rife with sweeping inadequacies in the rules and procedures relating to capital trials." To remedy the situation, the state needs to improve all aspects of the system – from police investigation to evidence collection and testing to judicial oversight of capital punishment proceedings. "There is much work to do if we are serious about improving the criminal justice system," TDS Deputy Director Andrea Keilen said.

The report contains a host of recommendations drawn from the 85 reform measures proffered by the Illinois Commission on Capital Punishment, empanelled by former Gov. George Ryan in 2000, after concerns about the fairness of the system prompted him to impose a state moratorium on executions. "In Illinois, there have been more exonerations of people given the death penalty than have been executed," Thomas Sullivan, a former assistant U.S. attorney and co-chair of the commission, said last week. Considering that Texas has executed more than 300 people during the modern era of the death penalty (28 times as many as Illinois), and has exonerated only nine inmates, the chance that Texas has executed an innocent person (or is in jeopardy of doing so) remains high, Sullivan said.

To compile the report, TDS compared the Illinois recommendations to Texas law – of the 85 recommendations, there are only seven "that are truly inapplicable" in Texas, Keilen said. Further, the study reveals that Texas does not comply with 80% of the "model practices" recommended in Illinois and implemented in various other states – such as using "double-blind sequential line-ups," in which the person conducting the lineup doesn't know who the suspect is; making forensic labs independent entities, away from police department oversight; and ensuring that resources are allocated equally to prosecution and defense. "Until adequate funds are made available … you run a great risk of convicting innocent people," Sullivan said.

In Texas, funding indigent defense, including capital defense, is a constant source of tension. In 2004, the state provided just over $12 million for indigent defense, leaving the counties to make up the rest – more than $127 million last year. (In contrast, the state spent more than $14 million on "brush control" programs.) Earlier this session, Sen. Rodney Ellis, D-Houston, amended the judicial pay raise bill (SB 368) to include an additional $8.9 million for indigent defense spending in 2006, and an additional $13.9 million each year thereafter, but the provision was stripped from the legislation last month by the House Judiciary Committee. (Capitol sources say the funding was stripped at the urging of Rep. Terry Keel, R-Austin, in response to the less-than-enthusiastic Senate reception for his HB 268, which is aimed at altering the attorney qualifications required for appointment to represent indigent defendants in capital cases. Keel denies the funding slash was retaliatory.)

Legislative interest in death penalty reform has waned since 2000, when the spotlight was on Texas during former Gov. George W. Bush's run for the White House, and this year is no exception. Numerous reform efforts are already dead – including bills that would require police to record all custodial interrogations, limit the use of jailhouse snitches, and modify procedures for eyewitness identification – measures that comport with recommendations in the new report. Still, Keilen, Ellis, and Sullivan said they hope the TDS report will serve as a blueprint for the as-yet-unseated, nine-member Criminal Justice Advisory Council that Gov. Rick Perry established in March, which will be charged with evaluating all aspects of the state's criminal justice system. "Texas should heed the warnings heralded by the Illinois commission," Keilen said. "We hope that the advisory council will consider our report; we don't have to reinvent the wheel."