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The House Committee on Criminal Jurisprudence met on May 23 to hear invited testimony on instances of prosecutorial misconduct and ineffective assistance of defense counsel, systemic and structural issues affecting resolution of criminal cases, and examine legal framework surrounding sexual assault prosecutions.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. This report is not a verbatim transcript of the hearing; it is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Opening Comments

  • Chair Moody- Going over interim charges 4 and 5 today, going to start with 5 by examining legal framework on sexual assault

 

Chris Kaiser, Director of Public Policy and General Counsel for Texas Association Against Sexual Assault

  • Penal Code problem with non-penetration or groping
  • Texas is one of seven jurisdictions where a sexual assault that includes groping is a Class C misdemeanor and is an equivalent to a minor offense with no ticket given
  • Legislation last session HB 142 would have fixed this issue
  • Explains Sexual Assault Statute
  • Only involuntary intoxication is included in SAS
  • HB 1808 eventually included coercion force and would love to see intoxication code pass
  • Emphasize why it is important to test all evidence because the DNA database solves cold cases and corrects wrongs
  • Estimate 9 percent of sexual assaults in Texas are reported to police
  • Should focus on what can we do to support public confidence in coming forward
  • Increased volume of evidence has created a bottleneck effect that is causing long wait times in labs which increases victim drop off
  • We tend to talk about sexual assault in terms of numbers, but important to remind ourselves that these situations involve victims who were violated
  • Should do what can to improve public confidence and make perpetrators less certain that they will get away with the abuse

 

Amy Derek, Chief of Sexual Assault Unit of Dallas District Attorney’s Office

  • Article 3878 allowed for all victims to testify against perpetrator
  • Wants language that limits the prevision of victims above the age of 17
  • Little difference between perpetrators of adults and children example of techniques like grooming
  • Backlog refers to backlog of cases dating back to 2011
  • City of Dallas had 4000 kits never tested and for past 4 years have been testing and prosecuting, found same scenario where perpetrators are serial and find homeless, drug addicted, transient, and others forgotten by law
  • Out of 60 cases filed, 25 defendants were serial rapists who assaulted 147 women and children
  • Testing the kits is not enough need to make sure perpetrators are held accountable
  • Delays in reporting hurt the case as showed by backlog project
  • Howard- What are the obstacles to moving beyond testing?
    • Getting victims to cooperate
    • Need to change a school of thought between what can be presented
    • Law enforcement is afraid to take case prosecutors don’t want to take, and prosecutes are afraid to take cases that they will not win
    • Being able to openly present evidence to juries
  • Howard-It sounds like the education and relationship building between law enforcement and prosecutors is what we need to focus on and looks like there is no legislative remedy for that.
    • Need to expand 3837 and allow with adults

 

Aja Gair, Senior Director of Community Advocacy for SAFE Alliance

  • Put forensic nurses in several hospitals to take care of sexual assault aftermath of assault; have performed 1,800 forensic exams since opening in 2015
  • In terms of reporting, survivors often wished they never engaged with criminal justice system because of the long period of time it takes for cases to be processed
  • Majority of survivors reported their assault for safety of others not themselves
  • 12-18 months to get a kit test through
  • Need increase in communication between the victims and Criminal Justice officials
  • HB 281 is a step in the right direction for survivors in Texas
  • Strangulation co-occurs with sexual assault; out of 1826 individuals, 15% also experienced strangulation
  • Do not have resources to provide advocacy
  • Urge committee to address sexual assault on historically underrepresented communities
  • Do not see enough reports from African American or Immigrant communities even though we know they are happening
  • Law enforcement and prosecutors need training on working with victims and how to properly read lab reports
  • Long wait time for kits, know survivors are still not coming forward and not getting the support they need, and there are prosecutions on just a fraction of sexual assaults coming forward

 

Gene McCleskey, Division Chief for the Crime Victim Services Division at the Office of the Attorney General

  • Office of Attorney General reimburse law enforcement for forensic costs of professional fee paid to the professional doing the exam, room for exam, type of exam, cost of kit, evaluation and management of victim, lab/path reports, photography, supplied
  • Moody- Where does attorney general intercede in the payment process?
    • Get receipt or statement, enter data into the comptroller system, and send payment
  • Moody- Any rejected?
    • 1/100 if forget to send in bill/application in
  • Law enforcement agency should never be billed for cost of medical help
  • 1979 Texas Crime Victims Compensation Program
  • HB 1486- allowed for reimbursement to be payed by OHE
  • Only state who either reimburses the victim or hospital for examinations done after a report is filed
  • OAG has no roll in testing or tracking, pay only for evidence collection
  • Nurse must complete certain number of hours before treating victim; 363 OAG nurse certificates being used currently
  • Recommendations: reimburse for medical care, develop Texas Evidence Collection Protocol, and certify sane nurses
  • Moody- What is the timeline for evidence collection?
    • Will be done by Fall
  • Gervin-Hawkins- Would your office provide training for people to care for sexual assault victim
    • Can provide some training, but not what is charged to do
    • Training course on victim’s rights not just how to deal with sexual assault
  • Moody-What numbers are associated with reimbursement?
    • In 2017, payed $6.5 million in reimbursements to law enforcement for sexual exams @$628 per exam
    • Up to $1000 allocated for each exam
  • Moody- What is the $6.5 million covering?
    • Covering all tests for application submitted victims

 

Gerry Morris, Criminal Defense Lawyer and Past President of National Association of Criminal Defense Lawyers and Criminal Defense Lawyers Association

  • Issue of comfort level of victims coming forward needs to be addressed; need to look at the reason why people do not come forward
  • Moody- There are many avenues to fixing that percent of people coming forward. Are we setting the right construct in place? It is not lost on me how hard it is to try a case on both sides.
    • Look to Title IX for actions of universities, they are doing a great job of that
  • System in place, 44b, where extraneous situations were in place if relevant, but with children involved there is none
  • Howard- How do we shift burden off victims? FBI reports told us 2-7 percent were false reporting. From a legislative standpoint, how do you have things in place like affirmative consent to help us correct the system and make sure victims are coming forward and not defending themselves.
    • Change rules in court room to make it easier to convict somebody
  • Howard- If we are doing a better job of making sure all evidence is collected and used, would this be a better way to convict?
    • Better evidence means better outcome
  • Howard- Maybe focus on that aspect to address your concerns?
    • Attitude of detectives needs to be addressed, victims who come forward are challenged by law enforcement especially if alcohol is involved. This causes the victim to drop the report.
    • Once we get to court room the rules are there for a reason and does not affect how the victim was confronted early on
  • Howard- Looked at examinations in the courtroom, these are looking at the victim wrong and as if they created the situation; as if they are on trial instead of the perpetrator.
  • Gervin-Hawkins- Is there system that can be put in place so you do not have to go to the DA’s office to look at it? Can we fix that area? For example, the Child Assault video from a couple month’s back.
    • Good example of when/who can attain the medical records
  • Gervin-Hawkins-Would it be helpful for the video to be available for use on cases?
    • Yes, absolutely
  • Gervin-Hawkins-What legislation will affect rule of the game for the judge or how we handle the case?
    • Prosecution being able to put video into evidence before the child testifies
    • Author of bill is asking legislature to make that a hard and fast rule
  • Gervin- Hawkins- In these cases judges have a lot of discretion and if there are potential biases what can help deal with other issues other than the video?
    • I think the bigger danger is legislation where one bill fits all, need to balance the various factors
  • Moody- Where are the gaps we need fill?
    • Needs to be a formalized method for a question that goes to the court for approval
    • Issue is determining whether it is a Brady problem or not
    • Decision of what might be favorable to defendant is left to prosecutors and puts them in an interesting position
    • Lack of funding leads to enormous case loads
    • Suggests reading “Wilbur vs. City of Mount Vernon”
  • Moody- The challenge is understanding societal issues and need to construct something that helps them but is a difficult balance. Something needs to shift.
    • Issue of consent is a shifting line, but do we address in criminal law?

 

Alice Emalot, Texas Department of Public Safety

  • Moody- Regarding testing in cases where we do not have a victim, can you walk us through your agency’s process?
    • Allows evidence to be collected without being identified
    • Sexual kits collected submitted to our bio warehouse in Houston store for 2 years or until victim is ready to bring case
    • Hit tracking not prosecutorial,
  • Howard- not going to get CODIS hits?
    • No
  • Howard- What is point in time of which tracking concludes
    • Do not know

 

  • Howard- Are we not sure if evidence is used?
    • No way to track
  • Howard- There are challenges with lack of lab facilities and lack of trained personnel, are you familiar?
    • Yes, there is a capacity issue to test kits
  • Howard- Challenge we have right now, despite money appropriated, seems to not be able to get past bottlenecks because we do not have capacity in our state to deal.
    • Agree, where our backlogs occur lies with training in DNA interpretation and turnover
  • Finding a way to make sure we have capacity is as important as finding funding.

 

Ashley Ford and Kyle Piccola, Public Policy and Communications Specialist for Texas Council for Disabilities and ARC of Texas

  • Defines and discusses Intellectual and Developmental Disabilities. Disability can often be hidden and hard to identify if not adequately trained People with IDD are not able to read, lack social skills, lack adaptive behavior, etc.
  • 5% of sexual assault cases for people with IDD were closed with no charge because law enforcement felt the trial could not go through because the victim cannot withstand trial or cannot testify
  • Texas Criminal Justice System can be inaccessible and is not designed to support those with IDD
  • Moody- Are you working with criminal defense and law enforcement to discuss possible changes?
    • Pathways to Justice Training brings together law enforcement, attorneys, and judges with victim advocates to see how professionals can fill gaps for people with IDD
    • Need for training is prevalent
  • 97-99% of sexual assault victims with IDD know the perpetrator
  • Services we prioritize are having paid staff around people who have IDD
  • Only 3% of sexual assault cases involving a person with IDD are reported
  • 65% of cases reported involving a person with a disability were not prosecuted
  • 7 times more likely for a person with IDD to be sexually assaulted
  • 80% of women with IDD are assaulted in their lifetime
  • Recommend training for criminal justice workers which helps victims provide more coherent testimony and improve integrity of criminal justice system and create specialty court for people with IDD
  • Gervin-Hawkins- Is there a plan in place to train individuals on how to work with people who have IDD?
    • Several states have come up with training for professional in Criminal Justice System, not sure if there are any specific to Texas
  • Hawking- As a legislature, should we be making the training required?
    • Do not see anything that is specific to people with disabilities on any website of department of criminal justice

 

Stacey Soule, Court of Criminal Appeals

  • Michael Morton Act initially gave prosecutors concern, but has not created a hurdle for prosecutions
  • Michael Morton Act has only been subject of appeal in 17 cases
  • The standard of review is the Brady standard – there is reasonable probability that if evidence had been disclosed, the outcome would have been different
  • The Act must be invoked in a timely request
  • Our position is that the Act covers far more than Brady
  • Prosecutors shouldn’t determine what is and isn’t relevant to the defense
  • The number of instances of ineffective assistance is concerning
  • We expect to see more misadvise claims
  • Granting relief to those who received ineffective assistance could result in wrongful convictions
  • Once relief is granted, it is returned to the trial court again
  • These proceedings can take months to years
  • This undermines the balance in our justice system
  • Ineffective assistance in the justice system warrants more attention from the legislature

 

Shannon Edmonds, Texas District and County Attorneys Association

  • Stacey’s research is top notch and incomparable
  • If you want to legislate on a topic like this, it is important to have reports like hers that provide real evidence
  • The most prevalent situation in which ineffective assistance is claimed is when evidence is seemingly withheld
  • The Michael Morton Act required more information to be turned over than the Brady Act did
  • There is a frustration among prosecutors who find their paralegals are not actually reading the information they’re given
  • We will go to the Coastal Areas affected by Harvey to help train lawyers and those involved in the criminal justice system
  • A lack of funding is a problem across the board
  • It is not an excuse for someone not doing their job, but it can make that job significantly more difficult
  • Texas is doing a good job to address this issue
  • Prosecutorial immunity is a major problem the legislature should examine
  • Moody – In what instances do the prosecutors have the responsibility to stand up?
    • Prosecutors have a vested interest in the defense doing a good job. In the Michael Morton Act, the defense is required to sign off that they received the information from the prosecutor
    • One challenge among local courthouses is the bar grievance process. Does something rise to the level of a grievance and do you want to pursue that process?
  • Gervin-Hawkins – Is there a statute of limitations on when you can file a complaint on an ineffective attorney?
    • There is, I will defer to an expert
  • Moody – Do you know anything that was done with Pathways to Justice?
    • No, but I want to investigate it

 

Linda Acevedo, State Bar of Texas

  • Generally, the statute of limitations for filing a grievance is 4 years
  • There are exceptions if fraud or concealment is involved
  • Gervin-Hawkins – If an individual is given 60 years and they believe there was concealment of evidence, how can that be approached?
    • You must be able to show that the prosecutor had knowledge that the information wasn’t turned over
  • Moody – Have you seen trends in grievances?
    • We have seen an increase in grievances following the Michael Morton Act
    • Most of them are individuals upset with the outcome of their case
    • We have seen an uptick in immigration related cases
    • The discipline system is not meant to target lawyers who are not good, in terms of quality
  • Moody – Are there tools the state bar would find helpful?
    • I’m looking forward to the changes due to our sunset review, that will help us resolve cases earlier
    • An early notice of when a lawyer’s trust account falls below where it needs to be would be good – overdraft notification
    • Texas is one of four states that does not have this

 

Geoffrey Burkhart, Texas Indigent Defense Commission

  • This is not a problem of a few bad apples, but a widespread problem
  • In 1999, a report was done that found many people were denied the right to counsel and many who did receive ineffective counsel
  • TIDC monitors all 254 counties
  • Ineffective assistance presupposes that counsel exists
  • Texas has remained unscathed regarding litigation concerning this problem, but many states have not
  • The ABA 10 principles are important
  • The 6th amendment is a gateway right- without counsel you cannot exercise other rights
  • Funding is not the only answer, but it is key
  • The greatest power a government has is to strip a person of their liberty
  • Moody – Can you walk us through the issues with Galveston County?
    • The case was filed by Civil Rights Corps. The judge was trampling on the prosecutors first amendment rights by removing him from the case for disagreeing with him on a separate issue
  • Moody – I appreciate the work you are doing

 

Mike Weir, Innocence Project

  • We established the conviction integrity unit and have had 16 exonerations of people who had been convicted of crimes they did not commit
  • I could go on about innocent people convicted based on ineffective assistance or misconduct
  • A study on these issues is merited
  • The study would need to be reliable
  • This would be the first step to determining the root of this problem
  • Gervin-Hawkins – If this study is commissioned, what would it look like?
    • The study could be however it is deemed appropriate. They could take reported opinions that have found ineffective assistance and dive deeper to find common threads in those reports
  • Gervin-Hawkins – What is the benefit of the study?
    • Who knows where it would take us? Assuming there would be information mined from the study as to what caused ineffective assistance. It would help us understand the problem and find solutions