Wrongful Conviction Lawsuit Defense Blog : Wrongful Conviction Defense Lawyer & Attorney : Andrew M. Hale Law Firm

Among a slew of bills being proposed in the Texas State Legislature is one that targets prosecutors who withhold exculpatory evidence.  According to Star-Telegram.com: "The bill would lift the statute of limitations on official-oppression cases and raise the penalty from a misdemeanor to a state jail felony if the withheld evidence was favorable to the defendant. Kelvin Bass, legislative aide for West, said the bill would allow for review years after wrongful conviction." 

The problem with the bill, complains Terri Moore, first assistant district attorney for Dallas County, is:  "[the] bill would expose prosecutors to punishment even if police had suppressed evidence and prosecutors didn’t know about it. 'Now I’m committing a felony because I didn’t turn something over to the defense that I didn’t even know existed?' Moore said. 'I got a problem with that.'"

We have not seen the actual the bill, but if the police turn over exculpatory information to prosecutors and the prosecutors withhold that information, the prosecutors should be held accountable.  With the shield of absolute immunity, prosecutorial misconduct is rarely explored in the context of wrongful conviction lawsuits.  When the police present a case to the prosecutors, the ball is in their court, and the police should not be on the hook for the prosecutors conduct.  If the police withhold exculpatory evidence from the prosecutors - then the prosecutors should get a pass. They can't disclose information they have no clue exists.  

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 The AP is reporting that some Texas police chiefs are supporting a measure that would allow taking DNA from supspects arrested for mid-level demeanors and up (including offenses like indecent exposure or check fraud). They also are supporting a measure that would set legal standards for how eye witness evidence can be collected by police.  The ACLU has gotten involved in the debate, calling the measure and "outrageous invasion of privacy."

Austin Police Chief Art Acevedo is among the law enforcement officials pushing to collect DNA from suspects in Class B misdemeanors. Their plan could mean sampling more than 800,000 people a year, some of whom may never be convicted or even go to trial.

Experts say that while a few states take DNA in misdemeanors involving sex crimes, none has gone as far as the Texas idea. The American Civil Liberties Union worries that police might make arrests just to fish for a DNA match.

"We think this is an outrageous invasion of privacy," said Rebecca Bernhardt, policy director of the American Civil Liberties Union of Texas.

"This is a step in the direction of creating a DNA database of every person in Texas, which is something Texans should be against," she said. "DNA is the most basic and private information a person has."

Austin Police Chief Arthur Acevedo says the samples would help police find criminals and exclude innocent people. The DNA proposal would include destroying records when charges are dropped or someone is acquitted at trial, Acevedo said.

"DNA has proven to be a tool that has gone a long way in proving the innocence of wrongly convicted individuals," Acevedo said, noting the Cole case. "This is an opportunity to eliminate people early on."

While the debate about the constitutionality of taking DNA from all mid-level misdemeanor arrestees will certainly develop in the next few months, it is the Center's position that the second measure is appropriate, if it is not too overreaching. By implementing procedures on lineups and eyewitness identification, the police will at least have some guidance about appropriate measures to take. These types of policies can help to limit misidentification by eye-witneses, which is the # 1 cause of wrongful convictions. However, if the policy is too far overreaching, it would in effect limit the police officer's ability to do his job, possibly putting the public at risk.

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