A SHIFT IN SCALES OF JUSTICE

Besieged System Gets An Overhaul

AUSTIN - The swaggering and cocky Texas justice system sat down for a
reflective session and came away with something akin to a death-row conversion.

Crime bills "To a great extent, the glare of that national spotlight did
make us take a tough look at ourselves, and we didn't like what we saw." -
Sen. Rodney Ellis, D-Houston What passed:

INDIGENT DEFENSE: A measure establishes minimum standards and experience
for defense lawyers representing the poor in an effort to improve the
quality of court-appointed lawyers. Also, funding would be provided for
counties, and attorneys would be appointed within at least three days of
their being requested.

RACIAL PROFILING: A measure prohibits law officers from unfairly targeting
minorities; police and sheriff's departments would have to document traffic
stops and searches by race and report them annually; and $18.5 million
would be provided for video cameras for patrol cars statewide.

EXECUTIONS: The execution of the mentally disabled would be banned. Juries,
after determining guilt in capital cases, would determine whether
sufficient evidence exists to find that the defendant is mentally retarded.
If so, the defendant automatically would be sentenced to life.

DNA TESTS: Those already convicted of a crime can ask a court to provide
them with a DNA test if it could show their innocence.

ASSET FORFEITURE: The burden is shifted to police to prove that property is
part of an illegal enterprise before it is seized.

WRONGFUL IMPRISONMENT: A measure raises the amount the state provides to an
innocent person erroneously convicted - from $50,000 to $20,000 for each
year served, up to a maximum of $250,000.

HATE CRIMES: A measure increases penalties for those who commit a crime
targeting a victim based on prejudice, including bias against race,
religion, sexual orientation and national origin.

- - Christy Hoppe

By Monday, gone from law-and-order legislators were their defense of
sleeping lawyers and executing the mentally retarded. Silenced was the
refrain that innocents never get the death penalty.

Instead, after the national spotlight of a presidential election, lawmakers
accepted responsibility for their criminal justice policies and voted
overwhelmingly to change them - although many of the same proposals had
faced defeat time and again in earlier years.

"Sometimes a picture can say 1,000 words, and the picture of a sleeping
lawyer defending someone who is facing the death penalty was so vivid in
the minds of people in this country that it didn't take a rocket scientist
to figure out that that is not competent representation," said Rep. Juan
Hinojosa, D-McAllen.

Mr. Hinojosa, chairman of the House Criminal Jurisprudence Committee, was
referring to a Texas death row inmate who sought a retrial because his
lawyer napped during parts of his trial.

Although prosecutors and defense attorneys say they generally are satisfied
with the changes, some crime victims say they feel abandoned by them, and
some law professors say the proposals are, at best, tiny, beginning steps
toward improvement.

Claiming victory

But most lawmakers hailed the bills as a major victory - perhaps the most
far-reaching efforts of the legislative session - ending the status quo and
starting toward a fairer system. "You know, this is a law-and-order state,
and I think we made the point that you can be tough on crime and still be
compassionate," said Sen. Rodney Ellis, D-Houston, who has championed
indigent defense reform and prohibiting the execution of the mentally retarded.

"In a state that has the largest prison population in the free world, in a
state that is the global leader in executions, it is appropriate that we be
as concerned about justice as we are about justice being swift," Mr. Ellis
said.

Currently signed or pending before the governor are measures to:

Assure the timely appointment of experienced defense lawyers for the poor.

Ban death penalties for the mentally retarded.

Provide DNA testing for certain inmates.

Pay up to $250,000 in compensation for those wrongly imprisoned.

Related content Lawmakers applaud milestones More Texas Legislature
coverage Lawmakers also sought to deal with unequal applications of the law
by prohibiting racial profiling and ordering data gathering on police
searches. And new laws could make law agencies prove that forfeited
property was gained through illegal activities instead of making the owners
prove that it wasn't.

In addition, after drug task forces in Tulia and Hearne targeted blacks and
sparked a federal civil rights inquiry, the Legislature made drug
convictions contingent on corroborating evidence, and not solely on the
testimony of a single drug agent.

Robert Kepple, general counsel for the Texas District and County Attorneys
Association, said prosecutors negotiated with lawmakers on many of the
criminal justice bills.

"On most of the versions, they've done a good job of trying to reach the
middle ground, and I think the prosecutors have been open to that," he said.

The need for change was made obvious by the national critiques that slapped
Texas during the presidential campaign, he said.

"I don't think there's any problem with stopping and taking a look at how
you're doing things. I think that's healthy," Mr. Kepple said.

What about the victims?

Dianne Clements, president of the victims rights group Justice for All,
said she views many of the so-called reforms as looming disasters. She said
the Legislature has forgotten the victims. "We've been acting like all
those mentally retarded and those who are indigent have not had victims
attached to their crimes," Ms. Clements said.

She said those who are so mentally disabled that they cannot understand the
consequences of their actions are precluded from trials by competency
hearings, and so the state does not need a ban on executing those who may
be only slightly retarded.

While everyone deserves a competent lawyer, she said, the system for
providing attorneys to the poor is likely to be "a can of worms that will
be a disaster."

She said that overall, the Texas system of justice is a good one and the
problem has been the lack of media reports to show how well the system is
working.

"These legislators, instead of believing they have something to amend,
should stand up and be proud that we have a system that offers fair,
competent counsel and does offer those who are convicted of the most
heinous crimes the opportunity to appeal at every level," Ms. Clements said.

University of Texas law professor Jordan Steiker, a constitutional scholar
who follows state legislation, said the Texas criminal legal system is not
working well, and the changes offered this session will make only
incremental progress.

"Texas is unique in having probably one of the harshest, if not the
harshest, capital punishment systems in the nation," he said, citing scant
resources afforded defendants, inadequate lawyers, and the lack of
protections for juveniles, the mentally retarded and poor.

A larger trend

Mr. Steiker said establishing minimum standards for appointed lawyers for
the poor is a modest step. While national criticism did help Texas realize
its shortcomings, he said, he also believes the state is being swept along
in a larger trend away from high crime rates and anger toward criminals.
The focus is now on wrongful convictions and the inappropriate use of race
by law enforcement, he said.

The Legislature has tried to forge some compromises, and without them,
"Texas would be falling far behind the curve," Mr. Steiker said.

For Mr. Hinojosa, who sponsored the bill banning execution of the mentally
retarded and the indigent defense bill, not everything he wanted was
accomplished.

He watched his bill that would have created life without parole as an
alternative to the death penalty pass the Senate, only to fail in the House.

But, he said, more was done in criminal justice than on any other topic
considered by the Legislature. "We were very successful in addressing some
of those areas that were perceived to be defective," he said.

Mr. Ellis agreed. "To a great extent," he said, "the glare of that national
spotlight did make us take a tough look at ourselves, and we didn't like
what we saw."