Senator Ellis Media Advisory

For Your Information
April 6, 2011
Contact: Jeremy Warren, 512-463-0113

Legislation to Expand Access to Post-Conviction DNA Passes Senate

SB 122 enacts another Cole Advisory Panel recommendation, improves justice in Texas

(AUSTIN)—The Texas Senate today approved SB 122, legislation by Senator Rodney Ellis (D-Houston) to strengthen Texas' post-conviction DNA testing law, another pivotal reform recommended by the Tim Cole Advisory Panel. Similar legislation unanimously passed the Senate last session.

"SB 122 will ensure that if there is DNA evidence available to prove someone's innocence, it can and will be tested," Ellis said. "No longer will the door to justice be shut just because of a procedural error."

Under existing law, post-conviction DNA testing is often not performed if the issue was not originally raised at trial. Under the current statute, post-conviction DNA tests can be granted only if testing wasn't available at trial, if testing was not technologically capable of proving guilt or innocence, or was not tested through no fault of the convicted person and, should therefore, now be tested in the interests of justice. If the evidence was previously tested and can be subjected to newer testing techniques that could result in a more accurate result, then it can be ordered to be tested again.

Recent court decisions and an exoneration in Houston have demonstrated the flaws in Texas' DNA law; SB 122 will help fix those gaps. The legislation requires post-conviction DNA testing would be granted if:

In addition, SB 122 requires courts to order any unidentified DNA profile discovered during post-conviction DNA testing to be compared with the DNA profiles in the FBI's CODIS DNA and the DNA database maintained by the Department of Public Safety. Such a comparison could be used to identify the actual perpetrator and exonerate the convicted.

Ricardo Rachell Exoneration
The recent exoneration of Ricardo Rachell in Houston demonstrates the urgent need for reform. Mr. Rachell was exonerated in Houston in 2008 after being incarcerated for 6 years for a child sexual assault he did not commit. In that case, biological evidence was collected from Mr. Rachell and the victim in 2002. It was never tested, in part, because the Houston Police Department's Crime Lab was shut down in December 2002 due to serious problems. At trial, defense counsel noted that the biological material was never tested but never requested it be tested himself. The District Attorney's office never requested it be tested either.

DNA testing finally took place after Ricardo Rachell filed a pro se motion for post-conviction DNA testing in 2007. The District Attorney's office filed a motion for post-conviction DNA testing on its own in March 2008 after Mr. Rachell's appointed counsel failed to file a motion. In October 2008, Mr. Rachell was released after the test results came back from DPS showing his DNA did not match the rapists'. The actual perpetrator was identified in December 2008.

Under existing law, Mr. Rachell's motion for post-conviction DNA testing could have been denied because: 1) DNA testing was available and 2) technologically capable of providing probative results. Ultimately, the motion for post-conviction DNA testing was granted "in the interests of justice," but it didn't have to be, and would not have had the District Attorney's office fought the motion.

Hank Skinner Supreme Court Case
On October 13, the U.S. Supreme Court heard oral arguments in the case of Hank Skinner, who was convicted in 1995 of murdering his girlfriend, Twila Busby, and her two sons, Randy Busby and Elwin Caler in the home they shared in the small Texas Panhandle town of Pampa.

The Texas Tribune described the case as follows:

Skinner, 48, has always denied committing the murders and says he loved Busby and her boys. . Since 2000, Skinner has asked the state to release other evidence for DNA testing, including a rape kit, biological material from Twila's fingernails, sweat from a man's jacket resembling one that Donnell often wore, a bloody towel and knives. Those items weren't tested at his original trial because his attorney at the time worried the results might be incriminating, but Texas courts have repeatedly denied Skinner's requests for testing in the years since, saying that he had his chance in 1995 and contending that more tests wouldn't prove that he wasn't the murderer.

On March 7, the US Supreme Court decided 6-to-3 that Hank Skinner can seek DNA testing under the federal civil rights statute, 42 U.S.C. sec. 1983.

SB 122 would make it possible for death row inmates like Skinner to have access to DNA testing to determine if they were innocent before they were executed.

"Under current law, innocence is often being left to chance," Ellis said. "Strengthening Texas' post-conviction DNA law is an essential measure to improve justice in Texas."

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