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Timothy Cole

RIP, Jeff Blackburn

Here’s a guy who made a difference.

In the summer of 1999, police in the tiny town of Tulia carried out one of the largest drug stings in West Texas history. Nearly 50 people were arrested, almost all of them Black, and several were quickly sentenced to life in prison. “Tulia’s Streets Cleared of Garbage,” the local newspaper declared.

Convictions in the remaining cases seemed all but certain, even though they were riddled with inconsistencies. None of the defendants had drugs on them when they were arrested and the allegations against them hinged on the often-contradictory testimony of a single undercover police officer. So in a last-ditch effort, one of the defendants’ lawyers asked for help from a prominent young attorney in Amarillo named Jeff Blackburn.

Over the next four years, Blackburn exposed one of the country’s most celebrated drug busts as a sham. Together with a team of lawyers and activists, he helped prove that the undercover officer was a serial liar. He secured early releases for dozens of the defendants and even convinced then-Texas Gov. Rick Perry to pardon them.

Blackburn’s work in Tulia helped set the stage for more than a decade of reforms to Texas’ criminal justice system — many of which are still considered the most transformational in the country. As founder of the Innocence Project of Texas, he helped exonerate dozens more people and, in the process, convinced lawmakers to do improve evidence requirements in criminal cases and increase compensation for the wrongfully convicted.

On Tuesday, the man once called the “trouble-makingest lawyer in West Texas” died of kidney cancer at age 65. In a series of recent interviews with the Houston Chronicle, Blackburn reflected on the changes that he helped bring about and insisted that the work was bigger than any one person.

“I really dislike the notion of people going, ‘Here was this extraordinary guy or person, and that’s how things happened,’” he said from his home near Taos, New Mexico, where he lived out his final days with friends and family. “I’m an ordinary lawyer.”

Any other conclusion, Blackburn said, is “essentially discouraging regular people to take up the cause.”

Blackburn went on to found the Innocence Project of Texas, helped get the Timothy Cole Act and Timothy Cole Innocence Commission passed, pushed for reforms on the use of confidential informants, and more. I blogged about the Tulia stuff here, and I think the original Texas Observer story about it is here. The Chron’s obit for him is long and richly detailed, so go read it. It’s also a reminder that a lot of work on this subject remains – among other things, it’s still easy for corrupt cops who get fired at one law enforcement agency to get hired by another, a key aspect to the Tulia story – and the bipartisan consensus on various forms of criminal justice reform has largely been broken. But that work is as urgent as ever, and it’s not going to do itself. Read about Jeff Blackburn and remember his legacy.

Keeping track of innocence-related bills

From Grits:

The House Criminal Jurisprudence Committee has posted an agenda which includes three important pieces of innocence legislation carried by Chairman Pete Gallego:

  • HB 215 Relating to photograph and live lineup identification procedures in criminal cases.
  • HB 219 Relating to the electronic recording and admissibility of certain custodial interrogations.
  • HB 220 Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence.

State Sen. Rodney Ellis is carrying the first two on the senate side, while Senate Criminal Justice Chairman John Whitmire has filed a companion bill to HB 220. In the House, Gallego is Innocence Man!

He’s optimistic that these bills, whose effect he describes in more detail, will make it through. There’s a committee hearing for today, so this is a chance for them to progress. Click over for more information.

Interview with State Sen. Rodney Ellis

Sen. Rodney Ellis

We move from the House to the Senate this week for conversations with the Democratic Senate delegation of Harris County. First up is State Sen. Rodney Ellis, who served three terms on Houston City Council in District D before being elected to represent SD13 in 1990. Ellis has championed many causes in his time in the upper chamber, with criminal justice reform and issues relating to innocence being the most prominent. He authored the bill that enabled the creation of the new Harris County public defender’s office and was the Senate sponsor of the bill that created the Timothy Cole Advisory Panel on Wrongful Convictions, and has led the push for a statewide Innocence Commission. In addition to that, he authored the bill that created the back-to-school sales tax holiday, and has been a leading proponent of expanded gambling in Texas. Those were among the subjects we discussed:

Download the MP3 file

You can find a list of all interviews for this cycle on the 2010 Elections page.

Public defender’s office approved


A state panel has awarded Harris County a $4.1 million grant to launch a public defender office, which is expected to start taking cases early next year.

The county plans to roll out the office in phases over the next two years to handle appeals, juvenile cases, adult felony trials and mental health cases. The new office will be a pilot project. It will not supplant the existing system in which judges appoint defense lawyers for the indigent. The county will use a hybrid of both approaches.

“This is a major milestone in the history of the criminal justice system in Harris County,” Precinct 2 Commissioner Sylvia Garcia said. A public defender office offers a greater chance at justice for criminal defendants, she said, as well as taxpayer savings in avoided jail costs. Defendants are likely to spend less time in jail awaiting trial and more likely to receive alternatives to jail sentences — such as drug treatment – with the help of specialized defense attorneys, Garcia said. That could reduce a jail population so large that the county houses 1,500 inmates in other counties and in Louisiana.


The county plans to hire a chief public defender by Nov. 1. The chief will hire a team of attorneys expected to begin working cases on Feb. 1.

That’s just great news. It was a hard slog to get here, but get here we did. Kudos to all involved. Here’s a statement from State Sen. Rodney Ellis about this:

“I commend the Task Force on Indigent Defense for approving Harris County’s $4.1 million grant request to establish a public defender office. If implemented and operated correctly, I believe the office will improve representation of indigent defendants, reduce the county’s jail population, and reduce recidivism, as public defender offices have been shown to do in other parts of the state.

“I also commend the hard work of the county officials, judges, and county staff who revised the public defender plan in response to concerns expressed by Houston-area clergy and national advocacy organizations seeking to improve indigent defense. In particular, I would like to thank Commissioners El Franco Lee and Sylvia Garcia, co-chairs of the Harris County Criminal Justice Coordinating Council’s Public Defender’s Office Workgroup; their colleagues on the Commissioners Court; District Court Judge Mike Anderson; and Caprice Cosper, Director of Harris County’s Office of Criminal Justice Coordination, for their hard work and dedication to improving indigent defense in Harris County.”

Ana Yanez Correa of the Texas Criminal Justice Coalition, who’s doing some guest-blogging at Grits for Breakfast while Scott is off the grid, joins in the celebration, and notes a couple of other good things that happened today for criminal justice, one of which was the Task Force on Indigent Defense voting to forward the final recommendations made by the Timothy Cole Advisory Panel. Here are the recommendations, plus statements from Sen. Ellis and State Rep. Ruth Jones McClendon for more.

What happens to exonerees?

We know that quite a few people who had been in prison have been exonerated and freed in recent years, and we know that a fund was created by the Lege last year to give them some compensation for their years of unjust imprisonment. But there’s still work to be done to try to make things right for these folks.

“Exonerees aren’t given a dime when they leave prison. Many don’t have a place to lay their heads at night,” says University of Texas at Arlington Exoneree Project director Jaimie Page, who helped get Scott and Simmons identification and other staples after their release. “If they have no family — and many do not — they are essentially homeless.”

The $10,000 reintegration payment was meant to combat this issue, says Kelvin Bass, a spokesman for state Sen. Royce West, D-Dallas, the lawmaker who added the reintegration language into the bill. Bass says West’s office has noticed some weaknesses with the Tim Cole law — namely, how that reintegration money gets paid.

The law calls for the creation of a new division within the Texas Department of Criminal Justice to provide help and benefits to exonerees, including the initial $10,000 payment. But that division is not yet operational, Bass says. Meanwhile, while the measure says the comptroller’s office is in charge of dispensing the monthly compensation, it leaves the TDCJ responsible for paying the initial reintegration money.

The TDCJ acknowledges it is responsible. But agency spokesman Jason Clark says the $10,000 is deducted from the total sum awarded to the exoneree as restitution — which is overseen by the comptroller. He said the money doesn’t start to flow until the inmate is formally exonerated, not just directly upon his or her release. And even when the initial money does flow, Clark said, it can only be used for living expenses, though the department also offers case management services to link the wrongfully imprisoned with needed services.

“It’s a great idea, but there is nothing in place,” Bass says. “And even with being awarded the compensation, there is no structure. Just handing somebody money isn’t enough.”

What we’ve got here is a good start. Texas is actually pretty progressive on this front compared to other states. One might churlishly argue that it’s because we’ve had so many more opportunities to free wrongly convicted inmates than those other states, but let’s not quibble. The Lege has done good work here. There’s just more of it to do, and we shouldn’t lose sight of that. Grits has more.

Tim Cole officially pardoned

This is a small bit of good to come out of a great injustice.

The [Texas Board of Pardons and Paroles] sent a letter to Tim Cole’s attorney at the Innocence Project of Texas on Friday saying that it had voted to recommend clemency and forwarded its decision to Gov. Rick Perry for his signature.

It would be the state’s first posthumous pardon, and Perry has indicated that he would sign an order clearing Cole’s name if recommended by the board.

“Gov. Perry looks forward to pardoning Tim Cole pending the receipt of a positive recommendation from the Board of Pardons and Paroles,” Perry spokeswoman Allison Castle wrote in an e-mail to The Associated Press on Saturday.

Perry has now fulfilled that promise. Good on him for taking care of it quickly.

Cory Session, who has been fighting to clear his brother’s name for years, said he anticipates that the governor will sign Cole’s pardon in March during a ceremony in Fort Worth.

“To say that the wheels of justice turn slowly would be an understatement,” Session said Saturday.

“The question is: How many more Tim Coles are out there?”

Grits tries to quantify that question. All I know is that if we lived in a society that valued justice more than it valued keeping score, we would have a criminal justice system that went to much greater lengths to prevent this sort of tragedy from happening, and worked proactively to fix the mistakes that did happen. I hope someday to live in that kind of society, but I don’t expect it.

Perry goes on the attack as evidence of a coverup mounts

The evidence keeps coming in.

Lawyers representing Gov. Rick Perry on two occasions grilled Austin lawyer Sam Bassett on the activities of his Texas Forensic Science Commission, telling him its probe into a controversial Corsicana arson case was inappropriate and opining that the hiring of a nationally known fire expert was a “waste of state money,” the ousted commission chairman said Tuesday.

Bassett, who served two two-year terms as commission chairman before Perry replaced him on Sept. 30, said he was so concerned about what he considered “pressure” from the lawyers that he conferred with an aide to state Sen. John Whitmire, D-Houston, who reassured him “the commission was doing what it’s supposed to do.”


As Bassett outlined the commission’s investigations of the Willingham case and that of Brandon Lee Moon, an El Paso man wrongly convicted of sexual assault, Cabrales told the chairman “he didn’t think those kinds of investigations were the kind contemplated by the statute,” Bassett said.

“I think he said something along the lines that we should be more forward-looking, more current rather than examining older cases,” Basset said. Later in the discussion, Bassett said, he was told the Moon investigation was appropriate, but the Willingham case was not.

Bassett later reviewed the statute, and, feeling vindicated, sent a copy to the governor’s lawyers along with a copy of the complaint that prompted the Willingham investigation.

At one point, the lawyers asked Bassett how the panel chose Beyler to review the Willingham case. Bassett said he explained state regulations, requiring the soliciting of bids, were followed. When Wiley asked how much Beyler had been paid, Bassett said he responded, “$30,000, maybe a little more.”

Wiley then remarked, “That sounds like a waste of state money,” according to Bassett.

Bassett said he was a novice in the role of commission chairman and was uncertain how to interpret the lawyers’ remarks.

“I was surprised at the level of involvement that they wanted to have in commission decision-making,” he said.

It may have been a surprise at the time, but it should be clear to all by now what was going on. Given that meddling in the affairs of others seems to be the Rick Perry modus operandi these days, I’d say that his initial explanation of this all being “business as usual” is quite apt, though I daresay not in the way he intended it to be. By the way, that’s the same Mary Ann Wiley who had nice things to say about the Tim Cole Advisory Panel on Wrongful Convictions. Clearly, she’s capable of playing the bad cop as well.

And with the evidence comes the attack.

The governor, speaking with reporters after a speech at the Texas Association of Realtors today, made some shocking comments.

Quorum Report was there and has a dispatch.

I’ll take Perry’s assertions one at a time.

“Willingham was a monster. This was a guy who murdered his three children, who tried to beat his wife into an abortion so that he wouldn’t have those kids. Person after person has stood up and testified to facts of this case that quite frankly you all aren’t covering. And I would suggest to you that you go back and look at the record here because this is a bad man.”

This parrots the prosecution’s arguments in the case. There was no motive for Willingham to kill his kids. So at trial they tried to paint him as a “monster.” Some of their evidence for this was Willingham’s rock posters that contained violent images, according to the must-read New Yorker story.

So Perry’s argument is basically “He was a bad man! He must have been guilty of something! We’re allowed to kill him for that!” I don’t think there’s really anything I can say to that.

Perry also asserts that:

[T]hat study that Mr. (Craig) Beyler came forward with is nothing more than propaganda by the anti-death penalty people across this country.”

This statement would be funny if we weren’t talking about a life and death issue here.

Craig Beyler is one of the preeminent fire experts in the nation, which is why the Perry-appointed Forensic Science Commission contracted Beyler to study the case. He’s a scientist, not an activist. He works with Hughes and Associates, an engineering and fire protection firm in Baltimore.

This case has become shrouded in death-penalty politics, but it’s still about the science of detecting arson.

Clearly, he fails to take into account that well-known liberal bias that reality has.

I remain skeptical that this is really going to damage Rick Perry with the GOP base, but the more it drags out and becomes apparent that it’s basically a banana republic-level attempt to cover up wrongdoing that is rooted much more in indifference than actual malice – in other words, all in the service of refusing to own up to a mistake, albeit a lethal one – the more one thinks that he will ultimately be damaged. I sure as hell hope so, anyway. TPM, BOR, and PDiddie have more, while Grits discusses a related topic.

Tim Cole advisory panel begins its work

The Tim Cole Advisory Panel on Wrongful Convictions, which was created to much fanfare by the Lege this spring, begins its mission this week in the shadow of the Cameron Todd Willingham uproar.

Cole was wrongfully convicted in 1986 and died in prison 13 years later before being posthumously exonerated this year. His brother, Cory Session, also of Fort Worth, said he plans to cite the Willingham case when he addresses the panel.

“It’s hard to overlook the possibility that an innocent man was executed,” Session said. “Just like my brother Tim till the day he died, they both said, ‘I didn’t do it.’ We just can’t take it lightly anymore when somebody says they’re innocent.”

You’d think so, that’s for sure. Makes you wonder what might have happened with the Cole legislation if the Beyler report had hit the fan in February instead of August, though. There’s a million ways for bills to die without leaving any obvious fingerprints behind, after all. Sadly, I share Grits’ pessimism about the panel being able to do anything in this climate without interference from the Governor’s office. But I’ll be happy to be proven wrong, and Grits’ Day One report was quite hopeful, with Mary Ann Wiley, the Governor’s representative, sounding a lot of good notes. I still can’t quite shake my feelings of cynicism, but again, I hope I have to retract that some day. The Contrarian has more.

Speaking of our only Governor, he would really appreciate it if you would pay no attention to the man behind the curtain.

Perry has fought to keep his itinerary of upcoming meetings and appearances from public review. No e-mail he has written has been made public because he only uses a personal e-mail account, which he says is not used for state business. His executive staff keeps a schedule that destroys most of the e-mails it generates every seven days.

In the latest example, Perry has denied access to files he reviewed in July 2004 that convinced him that Willingham was justly convicted.

Recent governors have served four or five years, and the memos of their general counsel became public through archives. Perry has served for 10 years and is keeping his lawyer’s memos over that decade closed.

“Those memos are provided by the governor’s general counsel to the governor under attorney-client privilege,” press secretary Allison Castle said.

She objected to any characterization of the governor as secretive, saying, “The governor continues to promote transparency at all levels of government.”

He has worked to place state spending and budgets online and released his tax returns. But when it comes to his prospective travel, meetings and even whether he is out of state, he has won attorney general backing that allows him to withhold his schedule.

“Security is different in a post-9/11 world. Security is paramount,” Castle said.

Nevertheless, his fight to tightly hold information is contrasted to the White House, which routinely announces the president’s appearances and meetings, along with his travel schedule weeks in advance.

“From what we have seen, this governor seems to be much more inclined to make decisions and conduct business in the dark than in the light of day compared to previous governors,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas, which fights for open government.

“I don’t know why he feels it’s absolutely necessary to keep from the public, for example, what his travel schedules are. Other governors did not have the need to do that,” he said.

Yes, well, other Governors – even the President! – aren’t Rick Perry. He’s so transparent he’s achieved invisibility. Like a ninja, except for the sword and the code of honor. Don’t even try to understand, your feeble mind has no hope of wrapping itself around the transparent aura of Rick Perry.

Perry sneers at Willingham evidence

This is exactly what I expect from Rick Perry.

Governor Rick Perry today strenuously defended the execution of a Corsicana man whose conviction for killing his daughters in a house fire hinged on an arson finding that top experts call junk science.

“I’m familiar with the latter-day supposed experts on the arson side of it,” Perry said, making quotation marks with his fingers to underscore his skepticism.

Even without proof that the fire was arson, he added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed “clear and compelling, overwhelming evidence that he was in fact the murderer of his children.”

These were the governor’s first direct comments on a case that has drawn withering criticism from top fire experts.

Death penalty critics view the Willingham case as a study in shoddy – or at least outdated – science, and they consider it the first proven instance in 35 years of an executed man being proven innocent after death.

“Governor Perry refuses to face the fact that Texas executed an innocent man on his watch. Literally all of the evidence that was used to convict Willingham has been disproven – all of it,” said Barry Scheck, co-director of the Innocence Project, a nonprofit group affiliated with the Cardozo School of Law in New York that has championed the case. “He is clearly refusing to face reality.”

Well, yeah. He has a Republican primary to win, you know, and reality is a hindrance in that race. Seriously, this is all classic Perry: the arrogance, the disdain for anything remotely intellectual, the refusal to consider the possibility of error, the bizarre belief that the Texas Board of Pardons and Paroles actually plays a role as reviewer of the evidence, the “jury’s verdict is final” mentality – if only he felt that way about civil verdicts as well. The one thing I find curious about this is the contrast to the case of Timothy Cole. I guess that bandwagon was big enough that he felt it necessary to hop aboard. I just hope that the Texas Forensic Science Commission is sufficiently independent that the Governor’s opinion in the Willingham case won’t affect their final report. We’ll see what he’ll have to say about that if they do the right thing. The Contrarian has more.

UPDATE: Grits has a good question for Perry.

Forensic Science Commission gets its report on Willingham case

It’s going to be a lot harder for anyone to claim with a straight face that the state of Texas has never executed an innocent man.

Key testimony that sent a Corsicana auto mechanic to the execution chamber for setting a house fire that killed three young children was based on faulty investigations that ignored eyewitness reports and failed to follow accepted scientific procedures, an expert review of the case concludes.

While the 51-page report by nationally known fire scientist Craig Beyler stops short of charging that Cameron Willingham wrongfully was sent to his death, it dismisses as slipshod the investigations by Deputy State Fire Marshal Manuel Vasquez and Corsicana Assistant Fire Chief Douglas Fogg. Willingham maintained his innocence until his execution in 2004.

“The only statement I want to make is that I am an innocent man — convicted of a crime I did not commit,” Willingham said from the death house gurney.

The men’s investigations into the December 1991 blaze at Willingham’s residence failed to meet current standards of the National Fire Prevention Association or even standards that were in place at the time of the fire, Beyler wrote.

Some of the testimony Vasquez offered to support his claim that the fire was set to kill Willingham’s 1-year-old twins and 2-year-old stepdaughter, Beyler contended, was “hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics.”

Beyler performed the review for Baltimore-based Hughes Associates Inc., a global fire protection engineering firm commissioned last year by the Texas Forensic Science Commission. The commission was created by the Legislature in response to the Houston Crime Lab scandal and other irregularities at state forensic labs.

Commission Chairman Sam Bassett, an Austin lawyer, said the panel will interview Beyler at its Oct. 2 meeting in Irving. Bassett said the commission will seek a response from the state fire marshal’s office. Vasquez died in 1994.

“This is a major step in the commission’s review,” the chairman said in an e-mail, “but it is by no means the end of the investigation.”

For more background on the Willingham case and other questionable arson cases in Texas, see here, here, and here. The Chicago Tribune, whose 2004 article on Willingham got the ball rolling on all this, has their own story, which contains this ending that may prove to be sadly prophetic.

Contacted Monday, one of Willingham’s cousins said she was pleased with the report but was skeptical that state officials would acknowledge Willingham’s innocence.

“They are definitely going to have to respond to it,” said Pat Cox. “But it’s difficult for me to believe that the State of Texas or the governor will take responsibility and admit they did in fact wrongfully execute Todd. They’ll dance around it.”

There is enough wiggle room to do that, if you’ve got a Sharon Keller/Antonin Scalia view of what “innocence” is. As encouraging as it was to see the state do the right thing in the Timothy Cole case, this is a step I’m not sure the powers that be are ready to take. I’ll be happy to be proven wrong about that. Grits and The Contrarian have more.

Ellis asks for AG opinion on Cole pardon

You remember Timothy Cole, the wrongly-convicted man who died in prison ten years ago and has since been exonerated in a court of inquiry. The Lege passed a bill named for him to increase compensation to those who have been freed after a wrongful conviction, which Governor Perry signed. Legislation to put a constitutional amendment that would allow for a posthumous pardon of Cole failed to pass, however, and Governor Perry has said he does not have the authority to issue such a pardon, based on an old AG opinion. Sen. Rodney Ellis, who was one of the movers behind the Cole legislation, has now asked for a new opinion to see if that constitutional amendment was required, or if the Governor does in fact have the authority. As Grits noted, the Texas Legislative Council thinks he has the power. We’ll see if the AG ultimately agrees, since it’s clear Perry will not take any action without an AG opinion. The DMN comes down on the side of acting now.

While the state’s courts have not answered this question definitively, the legislative council points to precedents in other states, as well as U.S. Supreme Court rulings, and suggests that Perry may not need any additional constitutional powers to pardon Cole.

Only a legal challenge to such a pardon could threaten to derail the governor’s decision. And as Ellis, who has been a vocal advocate for Cole, has posited: Who on earth would challenge a pardon for a dead, innocent man?


The decision to issue a pardon should be an easy one. Clearing Cole’s name would not threaten the tough-on-crime image Perry cultivates. But the governor’s office seems to be seeking an escape hatch, hanging their rejection on a 1965 AG opinion instead of proactively seeking a solution.

The judge who exonerated Cole called this “the saddest case I’ve seen.”

No, the state can’t right this egregious error. But by issuing a pardon, Perry could give an innocent man’s family some measure of peace.

For what it’s worth, I can actually imagine someone challenging this. Never underestimate the will of a crank. Be that as it may, I agree with the DMN. It’s worth it in this case to go forward now rather than wait on the AG. If it results in a lawsuit, getting the question answered once and for all will be worth it.

UPDATE: State Rep. Ruth Jones McClendon released the following statement today in support of pardoning Tim Cole:

The loss of a child is widely considered to be the greatest sorrow a mother can bear. Many mothers never recover from the emotional scar such a loss leaves permanently etched on the heart. In the case of Timothy Cole, the facts show that this loss could have been avoided. Timothy Cole was a Texas Tech University student at the time of his arrest, and was honorably discharged as a veteran after serving his country in the Army. Wrongfully convicted in 1986, he died after serving thirteen years in prison because of faulty evidence, and because the true assailant knew and withheld the truth which would have allowed Timothy to have been released from his prison cell and walk free. Timothy Cole died of asthma while incarcerated in 1999, never knowing he would be exonerated later and declared an innocent man.

For the rest of her life, Ruby Sessions will spend every Mother’s Day and every other important holiday and family event without her son. No one can ever bring her innocent son back from the grave, but it is possible to restore his good name and grant his family some peace of mind. To honor this request and issue a posthumous pardon, Governor Perry would be granting his mother the greatest act of kindness and respect that could ever be offered, by pardoning her son, Timothy.

It is a fundamental principle of living that when one has the choice of being right, or being kind, the better choice — and the one that produces no regrets — is to be kind. When, as in the case of Timothy Cole, it is possible to do both, then it only makes sense to do both. Based on the reasoning of a recent legal interpretation by the Legislative Council, an advisory department serving state officials and the Legislature, there is support for a posthumous pardon of Timothy Cole, based on a 1927 U. S. Supreme Court decision later affirmed in 1974. Texas attorneys know that an opinion by the highest court in the land carries more weight in precedence than a 44-year old opinion by the Texas Attorney General, as cited by the Governor, which does not have the authority of a court decision. Texas attorneys also know that an opinion by the Texas Attorney General is advisory only, does not have the authority of a court decision, and is ordinarily cited when there is no other established precedent. Surely, granting the pardon is the morally right course of action, and no legal challenge could be expected as a consequence of this act of kindness toward a veteran of our armed forces and his surviving family.

Clearly, a gubernatorial pardon is something to be considered carefully, and would be bestowed only in the most limited of circumstances. Such is the heart-rending case of Timothy Cole. Consequently, with the stroke of a pen, Governor Perry could ease the sorrow felt by Ruby Sessions, and issue a full and unconditional pardon for Timothy Cole now.

It’s all up to the Governor.

Adding Tim Cole amendment to the call

As you saw from the Senate’s pre-filed bills, there are a number of items being pushed by legislators that aren’t a part of the call for the special session. If one believes Governor Perry, it’s unlikely that anything else will get added, at least if the session is on track to finish up by the weekend as hoped. Nonetheless, here’s one thing that ought to be given strong consideration as an addition. Via press release from State Sen. Rodney Ellis’ office:

Senator Rodney Ellis, Representatives Ruth Jones McClendon and Marc Veasey joined Ruby and Cory Session, mother and brother of Tim Cole, for a press conference today urging Governor Perry to add a posthumous pardons constitutional amendment to the call of the special session. Tim Cole was posthumously exonerated in 2009 and today would have been his 49th birthday.

In September 1986, Tim Cole was convicted and sentenced to 25 years in prison for a rape he did not commit. He professed his innocence until he died in prison of an asthma attack in 1999. The real rapist, Jerry Johnson, attempted to confess to the rape beginning in 1995. In 2007, he wrote to Ruby Session, Tim Cole’s mother, confessing to the crime and not knowing that Tim had already passed away. In May 2008, DNA evidence revealed that Tim Cole was innocent and that Jerry Johnson was the true rapist.

This past regular session, the Texas House and Senate passed resolutions honoring Tim Cole, and in April, Judge Charles Baird exonerated Tim Cole in a “court of inquiry.” On May 27, Gov. Perry signed HB 1736, The Tim Cole Act, which increased compensation for the wrongfully convicted and family members of persons who were posthumously pardoned. Unfortunately, HJR 98, which would have authorized a constitutional amendment to give the governor the power to grant posthumous pardons, failed to pass the House.

Because HJR 98 did not pass, the governor has said he does not have the constitutional authority to grant Tim Cole a pardon.

“Nine states have granted posthumous pardons on at least ten separate occasions since 1977. President Clinton granted a posthumous pardon in 1999 to Lt. Henry Ossian Flipper, the first African-American commissioned officer in the United States Army. I don’t think we need to pass a constitutional amendment for Gov. Perry to pardon Tim Cole, but if the governor thinks we need it then he should add it to the special session call,” said Senator Ellis.

While it is unclear that a constitutional amendment is really needed, state legislators and the Session family have asked Gov. Perry to add a posthumous pardons constitutional amendment to the special session call so that he will grant Tim Cole a pardon for actual innocence.

“Since 1985 our family has been in a marathon race to clear the name of my brother Tim Cole. We are now in the final stretch toward the finish line of justice. To deny Tim Cole a pardon now is like firing the false start gun and saying try again. It is the Governor’s duty to take the baton of injustice off of our family and pardon Tim Cole,” said Cory Session.

Neither HJR98 nor its enabling legislation HB2596 ever made it onto the House calendar. Its Senate companion SJR11 did make it to the calendar, but fell victim to the chubfest, while its enabling legislation SB223 passed both chambers but was vetoed because SJR11 died in the House. It’s very likely the case that SJR11 would have passed the House had it ever been brought up, and as this seems like a fairly non-controversial item with a high do-good factor, you’d think it’d have a chance at a second chance. Up to the Governor, that’s all you can say. Grits has more.

Legislative wrapups

With sine die in the rearview mirror, tis the season for legislative wrapups. Here are a couple I’ve come across.

– First, from Bike Texas, which had the fairly easy task of just following one bill:

The final version of the Safe Passing Bill, SB 488, was passed yesterday [Saturday] by the Texas House. Today, the Senate voted on it, and overwhelmingly voted to pass it.

That was the final step for the bill to complete in the Legislature. Now, it will be sent to Governor Perry, and we are cautiously optimistic that he will sign it into law. We will know the outcome by June 21, the last day the Governor can sign or veto bills.

The 21st is a date that’s circled on a lot of people’s calendars. Next up is ACT Texas, which unfortunately had a lot less to be happy about.

How did the 81st Session go? After all the planning, meetings, hearings, email, office visits, phone calls, amendments, amendments to the amendment, how did things go for the ACT agenda this session?

The bottom line: we didn’t make the kind of progress on clean energy and clean air issues we had hoped to make. ACT bills faced two hurdles that could not be overcome this session. The first was strong industry opposition that both slowed the process (especially getting bills voted out of committee) and undermined the bipartisan support these measures had going into the session. The second was a legislative session that was behind from the beginning and ultimately derailed by a partisan stalemate in the House.

It’s important to note that bills did indeed pass that will continue to move Texas toward a cleaner, healthier future. Over the coming weeks, we’ll take a look at each of the 2009 issue areas in-depth and publish an assessment of how we fared on each. By the end of the month, ACT plans to publish a 2009 Legislative wrap-up.

Follow the link to see the specifics. The death of SB545, the solar bill, is in my mind the biggest disappointment.

Scott Henson had even less reason to be happy.

After all the fawning over Timothy Cole’s family and public declarations throughout the 81st Texas Legislature that the state would act to prevent false convictions, all the major innocence-related policy reforms proposed this year died in the session’s waning hours with the exception of one bill requiring corroboration for jailhouse informants.

Two other pieces of legislation for a brief moment had passed both chambers on Friday as amendments to HB 498, but after a 110-28 record vote approved the measure, Rep. Carl Isett moved to reconsider the bill and it was sent to a conference committee, where the amendments were stripped off for germaneness.

Sen. Rodney Ellis earlier in the day had requested the House appoint a conference committee and approve a resolution to “go outside the bounds” to consider eyewitness ID, but that resolution never came and instead the bill was denuded of all policy substance to become a bill to study whether to study the causes of false convictions.

We didn’t need more study by the Legislature on this issue, we needed action. Eyewitness ID errors make up 80% of DNA exoneration cases and the Court of Criminal Appeals’ Criminal Justice Integrity Unit said it should be the Legislature’s highest priority for preventing false convictions. But unless the issue is added to a call in a special session, at least two more years will pass before the Lege can begin to rectify the problem.

That’s inexcusable. It’s not okay for the Legislature to know that innocent people are being convicted under the statutes they’ve written and simply decline to prevent it.

The irony, as he notes later, is that by adopting HB1736, which increases the restitution made to exonerees, the state has ensured by its inaction that there will be more of them. So much for fiscal responsibility.

– On another single-issue matter, the saga of Gulf Energy, which got screwed over by the Texas Railroad Commission, won the right to sue the RRC to force it to clean up its mistake as SCR72 made it through on the last day. Good luck in court, y’all.

– And finally, a mixed bag from the Legislative Study Group, which I’m copying from email and reproducing beneath the fold.

All in all, the good news of this session is that there wasn’t much bad news – very few truly atrocious bills, the kind we were used to fighting off (usually unsuccessfully) in the Craddick days, made it to the floor, much less through the process. That’s part of what a lot of us hoped for with Joe Straus as Speaker, and up till the voter ID fiasco we got it. The bad news is that there wasn’t nearly enough good news, especially when you consider the number of good bills that were needlessly snuffed at the end thanks to voter ID. I’m not sure which is worse after sine die, feeling like you’ve spent 140 days fighting off zombies, or feeling like a whole lot of potential slipped through your fingers. What I do know is that we need to do better next time, and the fight for that starts now.


Two for Timothy Cole

On Friday, the House concurred with Senate amendments to HB1736, the Timothy Cole Act that increases compensation to those that have been wrongly convicted. I had said on Monday that it had passed both chambers at that time, but I didn’t realize the Senate had added two amendments that needed House approval. That’s now been done, so unless I’m missing something else, it should now be on its way to Governor Perry’s desk.

Also on Friday, HB498, which creates an Innocence Commission to investigate false convictions and identify reforms to prevent their recurrence, passed the House on third reading. It’s now in the Senate’s hands for final approval. Grits testified in support of this bill on behalf of the Innocence Project of Texas back in March. The commission would be known as the Timothy Cole Innocence Commission, according to a press release I received from Rep. Ruth Jones McClendon, the bill’s author. I’ve reproduced the release beneath the fold. All told, I’d say this has been a pretty decent session for criminal justice reform. There’s never enough that gets done, but I get the impression more has been done so far this time than in recent memory. Grits mentions a couple of other worthwhile bills that have made it this far as well.


Monday Lege roundup

Lots of legislative action today beyond the voter ID vaudeville act. Here’s a quick roundup of some other bills of interest.

HB1736, also known as the Tim Cole Act for the man who was posthumously exonerated this February, has passed both chambers and is on its way to Governor Perry’s desk. The bill increases the compensation given to those who are exonerated after being sent to jail. Grits has the story, and more info is here and here.

– The statewide smoking ban is stuck no more.

A statewide smoking ban was endorsed by a Senate panel today, after authors agreed to exempt cigar bars, patios of restaurants and bars, and nursing homes.

Sen. Rodney Ellis, D-Houston said the compromises were necessary to resuscitate the measure, which he called a matter of life and death.

“It goes a long way toward reducing the incidence of cancer in Texas,” he said of his bill. It cleared the Senate Health and Human Services Committee on a 5-3 vote.

Committee Chairwoman Jane Nelson, R-Flower Mound, joined the panel’s four Democrats in voting for the bill, which Ellis praised as “much stronger” than a companion measure in the House that was watered down Friday to exempt 224 of the state’s 254 counties, limit enforcement and carve out many loopholes for bars.

So Sen. Nelson was true to her word. Kudos to her for that. SB544 still has to pass the full Senate and then get reconciled with the House bill, once it passes that chamber. There’s still work to be done, in other words.

Solar energy gets a boost.

[SB541] by state Sen. Kirk Watson, D-Austin, would provide so-called renewable energy credit incentives for electric generation from equipment manufactured in Texas and sets a goal for electricity generated from sources other than wind at 1,500 megawatts by 2020.

“This is designed to help bring large, industrial-size solar facilities to Texas,” Watson said. “This is about looking forward to the future — in alternative energy, jobs and manufacturing — much the same we did for wind a few years ago.”

Good. ACT Texas and Environment Texas cheer, and I join them in that.

– Finally, both strip club bills, Rep. Senfronia Thompson’s HB982, and Rep. Ellen Cohen’s HB2070 were scheduled for votes today, the former in the Senate and the latter in the House. You have to figure there can only be one, so we’ll see which one survives.

Busy day yesterday

There were a lot of bills passed yesterday by one chamber or the other. My mailbox is full of press releases touting them. I’m going to go ahead and print them beneath the fold as a roundup. A few bills that got notice in the media:

– The Tim Cole Act passed out of the House.

Texans wrongfully convicted of crimes will get a much larger paycheck from the state for their incarceration under a bill tentatively approved by the state House today.

Wrongfully convicted persons currently are paid $50,000 in two installment payments. The new proposal would pay $80,000 per year of wrongful incarceration. An identical measure by Sen. Robert Duncan, R-Lubbock, is pending in the Senate.

“Think for a few moments about walking in their shoes,” Rep. Rafael Anchia, D-Dallas, one of the authors of HB 1736, told his colleagues.


The measure is known as Tim Cole Act to honor a former Texas Tech student wrongfully convicted of sexual assault. Cole died in prison from an asthma attack in 1999 – about halfway through a 25-year sentence.

“This bill cannot make people whole. But we can do better,” Anchia said.

The measure passed on a voice vote without opposition and prompted applause in the chamber.

The record vote on third reading (PDF) was 136-1. I noted Anchia’s bill last month. We’ll see if it passes muster with Governor Perry. Grits has more.

– Ignoring a mandatory evacuation order for a hurricane and then needing a rescue may cost you in the future.

More than 20,000 people stayed on Galveston Island last year despite a mandatory evacuation order as Hurricane Ike approached the Texas coast. Allison Castle, spokeswoman for Gov. Rick Pery, said there were 3,540 rescues in the region by state and local authorities, and the U.S. Coast Guard.

“They have that right to remain if they choose to,” said bill author Sen. John Carona, R-Dallas. “But they stay at their own peril, and they stay with the possibility that if recovery is necessary to preserve their lives, they’d pay the related cost.

“And that’s potentially a lot of money.”

The cost of a helicopter rescue is about $4,400 an hour.

I believe the bill in question is SB12, which passed unanimously on third reading. I agree with the principle of the bill, though I wonder what mechanism will be used to collect the fees from the people who will need such rescues. What if they claim they tried but were unable to get out? There will be an interesting legal battle over this some day, I expect.

– Not a bill, but the Senate budget conferees were announced. No word yet on the House contingent.

There were more bills passed, and we can expect a lot more action in the coming weeks. Click on for the press releases.


All DNA, all the time

How often should we collect DNA from someone who’s been arrested? Some people think the answer should be a lot more often than we do now.

Texas is one of several states that draw DNA samples from anyone convicted of a felony and those arrested for particularly violent crimes, such as sexual assault and murder. The federal government takes samples from everyone arrested by federal officers.

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.”

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 [Timothy] Cole case. “This is an opportunity to eliminate people early on.”

But using the Cole case to press the issue is misleading, the ACLU says. As a felony rape suspect, Cole’s DNA could have drawn under existing laws.

Well, that and the fact that as the story notes, Class B misdemeanors includes things like writing bad checks. I don’t think DNA is likely to exonerate anyone from that rap.

The ACLU raises a good point, but I have a more basic objection: How much would all this extra DNA testing cost, and what’s the funding mechanism for it? Postcards provides a partial answer to that:

Facing a growing controversy over a push by Texas’ big-city police chiefs to greatly expand mandatory DNA tests, state Sen. Dan Patrick, R-Houston, wants to be clear: A bill he filed does not expand the tests to misdemeanor suspects.

Patrick’s measure, Senate Bill 727, would only expand the current DNA-testing law to cover convicted felons who are sentenced to deferred adjudication and those who are placed on probation.


So far, the police chief’s push has not made it into legislation. If it does, it would likely face an uncertain future in the current budget-cutting climate at the State Capitol.

The chief’s proposal has an estimated minimum $32 million price tag.

If it’s only being expanded to cover convicted felons, then it’s less objectionable and presumably less expensive than the the chiefs’ request. I’m still skeptical, but this is at least in the neighborhood of something I could live with. If the innocence-related bills that Sen. Rodney Ellis has filed get adopted as well, I’d consider that a reasonable compromise.

Exonerating the deceased

One of the things Eric Berger focused on in his story about the relevance and importance of Charles Darwin some 200 years after his birth was the rise of DNA and its application to criminology. Today, DNA evidence is as well known for freeing the innocent as it is for convicting the guilty. Sadly, sometimes that evidence comes too late to actually set the wrongly-convicted person free, as is the case with Tim Cole of Lubbock. But that doesn’t make his exoneration any less important. Read his story and think how many others like him there must be.

UPDATE: The Lege pays honor to Timothy Cole. Grits has more.