Judges look to shake up DNA appeals



By ROMA KHANNA Copyright 2009 Houston Chronicle
April 10, 2009

By some assessments, Houston’s most recent inmate exonerated by DNA 
evidence spent an extra year in prison because of his attorney’s slow 
work.
Harris County’s criminal judges now hope to eliminate such scenarios 
through a plan to restrict appointments to cases involving post-
conviction DNA testing to a small pool of experienced lawyers.
The 2001 law under which convicts can request DNA tests has been the 
key to freedom for four Harris County men and dozens of others across 
the state in recent years. But local judges and lawyers say such 
cases can suffer from a lack of attention and experience.
Just after he took the bench in January, State District Judge Randy 
Roll considered a 28-year-old case against a defendant seeking DNA 
tests on evidence that was collected but never analyzed, evidence 
that police and county officials years ago reported had been lost or 
destroyed.
Roll initially denied the request, assuming that no evidence existed. 
Within weeks, however, new lawyers had found what others could not: 
three hairs from the victim’s clothes that may resolve questions 
about Donald R. Burke’s 1981 rape conviction.
The case prompted Roll to ask his fellow judges to change the system 
for appointing lawyers to defendants seeking post-conviction DNA 
testing to ensure that the cases go to people with knowledge of 
evidence storage and DNA.
“It upset me that there could be a 30-year-old case out there with 
evidence that no one knew how to find,” said Roll, elected to his 
first term last November. “It became clear to me that we cannot just 
name lawyers to these cases ad hoc, but that we need experts doing 
this.”
His colleagues agreed. The county’s 22 criminal district judges 
recently approved a plan to limit the lawyers assigned to cases in 
which defendants are seeking post-conviction DNA testing to a 
selected group with experience in the area.
The judges have yet to decide how many lawyers will be in the pool, 
but they expect to post a notice seeking applicants soon, said State 
District Judge Debbie Stricklin, administrative judge for the 
criminal courts.
These “cases can be legally complex and indigent defendants may be 
best served by appointing lawyers familiar with the process,” she said.
Lack of deadlines a factor

The 2001 law allowing inmates to seek post-conviction DNA testing has 
been used in dozens of local cases each year. Between 2006 and 2008 
about 100 inmates from Harris County asked for reviews, prosecutors’ 
records indicate. The law also was invoked when judges reopened 
hundreds of cases with questionable forensic work from the Houston 
Police Department’s troubled crime lab.
The law, however, includes no deadlines for the defendant asking for 
the tests nor for lawyers handling the cases. In Harris County, 
appointed lawyers have been selected from those eligible to work on 
appeals, without regard to their experience with such claims. With no 
deadlines looming, some lawyers and observers said, those cases 
become a low priority and can drag on.
In a report last month, Harris County District Attorney Pat Lykos 
said Houston’s most recent exoneree, Ricardo Rachell, unnecessarily 
remained in prison because of his lawyer’s slow work.
Plan called ‘a Band-Aid’

“Rachell’s (DNA) lawyer did not prepare and file the requisite motion 
requesting testing,” Lykos wrote, saying that “prolonged Rachell’s 
imprisonment almost a year.”
Mark Bennett, president of the Harris County Criminal Lawyers 
Association, agreed that post-conviction DNA cases can linger too long.
“If this leads to more experienced lawyers handling these cases, the 
clients are going to benefit,” Bennett said.
The architect of the law, Sen. Rodney Ellis, D-Houston, called the 
judges’ plan to change the appointment system a quick fix and 
suggested broader reform was needed.
“This is a good Band-Aid, but it is only as good as the people they 
choose to have these appointments,” Ellis said. “Problems like this 
should encourage people to have a full-blown discussions of creating 
a public defender system, to … get at the root of the problem.”

Chronicle reporter Lise Olsen contributed to this story.
roma.khanna@chron.com

http://www.chron.com/disp/story.mpl/metropolitan/6368575.html