Timothy Cole Advisory Panel on Wrongful Convictions Recommends Expanded Post-Conviction DNA Testing, Habeas Corpus Based on Changing Science


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

U.S. District Court Judge William T. Moore, Jr., who presides in the Southern District of Georgia, recently observed in the death penalty case of Troy Davis (here and here) that only one state of the 35 states that have the death penalty does not have any post-conviction avenue for inmates to either secure or offer evidence of innocence. That lone state is Oklahoma. Altogether, 47 states and the District of Columbia have enacted statutes which provide varying degrees of access to remedies to establish innocence in a post-conviction setting. Massachusetts, Alaska, and Oklahoma are the only three hold-out states which have elected not to enact reform legislation in the critical area of establishing “actual innocence” despite the ever-increasing number of DNA exonerations.


Chapter 64 of the Texas Code of Criminal Procedure provides inmates claiming actual innocence with an avenue to procure DNA testing. Article 64.01 permits an inmate to motion for DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit outlining the facts supporting the motion. The motion can secure DNA testing only of evidence that was in possession of the state during the trial of the offense for which he was convicted, provided the following conditions are met: 1) the evidence was not subjected to DNA testing because such testing was not available; 2) DNA testing was available but was not technologically capable of producing probative results; or 3) DNA technology has improved with newer testing techniques which provide more accurate results.


Recently the Timothy Cole Advisory Panel on Wrongful Convictions (“Panel”) pointed out that Texas inmates who make claims of being wrongfully convicted not related to DNA evidence—such as improper ballistics analysis, faulty arson forensic evidence, or staged dog scent evidence—must petition the courts through a writ of habeas corpus pursuant Art. 1107 of the Code of Criminal Procedure in non-capital cases and Art. 11.071 in death penalty cases.


The burden facing a defendant in a habeas proceeding trying to establish “actual innocence” has been historically high because the U.S. Supreme Court has never definitively recognized what is called a “freestanding” actual innocence claim in habeas proceedings. Just last year the Court in case of District Attorney’s Office of the Third Judicial District v. Osborne held that the “actual innocence claim” issue was an “open question.” Yet just two months later the Court ordered a hearing in the case of Georgia death row inmate Troy Davis on the issue of “actual innocence,” saying it would violate the Eighth Amendment prohibition against cruel and unusual punishment to execute an innocent man as Davis has claimed to be. Against this conflicting constitutional backdrop, Judge Moore conducted an extensive evidentiary hearing and in August issued a comprehensive ruling that Davis had failed to establish his “actual innocence” test by “clear and convincing evidence”—the standard of evidence the federal judge said should be applied in such claims.



The month before Judge Moore rendered his opinion Dallas attorney Gary A. Udashen presented an excellent paper titled “Freeing the Innocent: Actual Innocence and the Writ of Habeas Corpus” to the Annual Advanced Law Course sponsored by the State Bar of Texas in San Antonio. In his piece, Udashen distinguished the difference between two leading “actual innocence” decisions handed down by the Supreme Court:  Herrera v. Collins (decided in 1993) and Schlup v. Delo (decided in 1995). Udashen informs us that a Herrera-type claim “involves a substantive claim in which the applicant asserts a bare claim of innocence based solely on newly discovered evidence” while a Schlup-type claim “is a procedural claim in which the applicant’s claim of innocence does not alone provide a basis for relief but is tied to a showing of a constitutional error at trial.”


Udashen stated that Herrera “serves as sound precedent for recognition of habeas relief when an actual innocence claim alone is raised.” Judge Moore, however, was not so embracing of Herrera as a “sound precedent” vehicle. The judge pointed out that Herrera was “decided [solely] on the merits” (no factual basis for the actual innocence claim) without the court firmly deciding “the cognizability of the freestanding claim of actual innocence.” Judge Moore said that because the court “simply assumed that freestanding claims of actual innocence were cognizable” in habeas proceedings, it did not feel compelled to “state a concrete position on the issue.”


These two divergent interpretations (Udashen and Moore) of Herrera illustrate the enormous difficulty actual innocence claims face at either the state or federal level. In fact, as noted by Judge Moore, the Supreme Court Justices themselves were sharply divided on the extent of cognizability of an actual innocence claim in habeas proceedings: “four Justices provided only suggestive dicta on either side of the question,” “two Justices expressly stated the Constitution does not recognize the claim,” and the remaining three Justices “explicitly recognized the claim.” Although it had the opportunity in Schlup, the Court did not clear up the muddied water on the actual innocence issue because, as Judge Moore pointed out, “Herrera was discussed, but only to contrast its hypothetical freestanding claim of actual innocence to the long-recognized exception to procedural default for a miscarriage of justice.” And thirteen years later in House v. Bell the Justices persisted with the ostrich-like “head in the sand approach” to the issue by “briefly touching on the freestanding claims of actual innocence” but refusing to delve any further because the defendant had failed to state a claim sufficient to “require consideration of the claim.”


Osborne and Davis did little to purify the constitutional waters on the issue. In fact, Justices Scalia and Thomas in Davis actually concluded that the U.S. Constitution, either under its due process or cruel and unusual punishment provisions, does not prohibit “the execution of a convicted defendant who has had a full and fair trial but is later able to convince a … court that he is ‘actually innocent’ …” And this brings us to the case of Texas death row inmate Hank Skinner (here) whose case will be heard by the Court this Term. The Skinner case raises the narrow issue of whether a death row inmate can pursue a request for DNA testing under 42 U.S.C. Sec. 1983 rather than through habeas proceedings as part of a death penalty appeal. The gnawing uncertainty in Skinner is whether the Court will venture beyond the Sec. 1983 issue and actually tackle the “actual innocence claim” issue head-on, and if so, whether will it confine its ultimate ruling strictly to capital cases as indicated by the Davis decision; or, worse yet, will the court simply restrict its review in Skinner to the sole issue of whether DNA requests by death row inmates can be pursued through Sec. 1983 actions leaving the actual innocence issue as “open question.”


In the end, Judge Moore elected to follow his own judicial instincts and concluded that “the objective indicia of societal standards indicates a consensus that the execution of innocent convicts should be prohibited, whether innocence is proved before or after trial. Indeed, the national consensus among the state appears nearly unanimous on this score.” Having drawn this conclusion (executing innocent people is indeed cruel and unusual), Judge Moore rejected Herrera’s “extraordinarily high” burden of proof to establish a claim of actual innocence and refused to embrace Schlup’s somewhat lesser restrictive standard of reasonable probability (viewing the evidence in a light most favorable to the prosecution, no rational juror could have found beyond a reasonable doubt all the essential elements of the offense). Instead the judge chose to adopt the “clear and convincing evidence” standard set forth by the Supreme Court in Sawyer v. Whitley in 1992 which falls somewhere between the Herrera/Schlup standards.


But even against this convoluted constitutional backdrop, Udashen compiled 18 cases in which Texas appeals court have granted habeas relief based on claims of actual innocence, another five cases in which new trials were ordered, and 17 cases in which DNA evidence established the “actual innocence” of the inmates. Udashen also listed 22 inmates, including Timothy Cole, who have been pardoned on the basis of DNA exoneration. Beyond disturbing, these cases offer compelling evidence why the Texas Legislature should embrace the Panel’s two following recommendations which would expand the state’s post-conviction DNA testing and the availability of habeas corpus based on changing science:


  • The State of Texas should amend the Chapter 64 motion for post-conviction DNA testing to allow testing of any previously untested biological evidence, regardless of the reason the evidence was not previously tested, or evidence previously tested using older, less accurate methods; and
  • The State of Texas should amend the Chapter 11 writs of habeas corpus to include a writ based on changing scientific evidence.


The Panel pointed out that there have been 41 DNA exonerations in this state—more than any other state in the nation. Two bills were introduced in the 2009 legislative session that would have implemented the recommendations proposed by the Panel, but they failed to gain enough political traction to become law after being opposed by the Harris County and Lubbock County District Attorneys’ offices. Why is that not surprising?  Harris County is second only to Dallas County in the number of DNA exonerations and the Lubbock County District Attorney’s office wrongfully convicted Timothy Cole and fought his undeniable exoneration to the bitter end.


The time has long passed for the U.S. Supreme Court to get its act together on “actual innocence claim” issue and the time has arrived for the Texas Legislature to upgrade the state’s post-conviction remedies to make “actual innocence” claims more accessible to the courts. Beyond the 258 DNA exonerations in this country, there have been 135 people released since 1973 from death rows in twenty-six states after their actual innocence was determined. Eleven of those inmates were on Texas’ death row. According to the Death Penalty Information Center, there has been an average of five DNA exonerations per year between 2000 and 2007. We cannot continue to execute people or confine them with life sentences without the possibility of parole with a system that refuses to do everything possible to protect the innocent with open and honest avenues to pursue the truth.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair