Brian Wice 2013-08-27 03:26:35
“There are, in effect, two things, to know and to believe one knows; to know is science; to believe one knows is ignorance.” —Hippocrates OF ALL THE THINGS I ENVISIONED MYSELF DOING AS A SOLO CRIMINAL DEFENSE ATTORNEY, TESTIFYING BEFORE THE TEXAS SENATE WAS MOST CERTAINLY NOT AMONG THEM. Perhaps it was because I feigned the same degree of interest in high school civics class that a seven-yearold has in quantum physics. Maybe it was the bitter aftertaste I had as a legal analyst for NBC covering the partisan, preening, and vacuous members of the House Oversight Committee in their self-styled “investigation” of former pitching ace Roger Clemens in February 2008. Whatever the reason, my degree of enthusiasm for participating in the legislative process on any level was akin to watching a Here Comes Honey Boo Boo marathon on TLC. All of that changed with a late-spring phone call from Amarillo criminal lawyer Jeff Blackburn, founder and chief counsel of the Innocence Project of Texas. Blackburn, Gary Udashen, a top-notch Dallas criminal lawyer, and Scott Henson, an Austin lobbyist and author of the critically acclaimed blog “Grits for Breakfast,” had drafted Senate Bill 344, which would ensure access to the courts for defendants convicted on junk science, including those whose initial post-conviction writs had been rejected. S.B. 344, part of the 83rd Legislature’s laudable attempt at reducing the specter of wrongful convictions—highlighted by S.B. 1611, otherwise known as the Michael Morton Act, which required prosecutors to open all of their files to the defense during pre-trial discovery—provided that a defendant could obtain relief by a showing of a preponderance of the evidence that scientific evidence essential to his conviction had been “contradicted” by relevant scientific evidence that was unavailable at his trial. Almost identical versions of S.B. 344 made it out of committee the past two legislative sessions but died in the final days of those chaotic conclaves. Blackburn wanted to know if I would drive in from Houston for the day and testify in support of the bill. Blackburn’s call was no coincidence. He knew that I had suffered a bitter defeat two years earlier when the Court of Criminal Appeals, by a vote of 5-4, had denied a new trial for Neal Robbins, who was serving a life sentence for the 1998 capital murder of a young child in Montgomery County. The bare majority rejected the recommendation of the trial judge, veteran jurist K. Michael Mayes, that a new trial was warranted because the state’s key witness, Dr. Patricia Moore, the assistant medical examiner who performed the autopsy, had re-evaluated her trial testimony and concluded, based on the additional five years of training and experience she had acquired, that the cause and manner of death should have been ruled “undetermined” and not “homicide.” Notably, Moore’s expert opinions had been jettisoned by her superiors in Robbins and a number of other cases involving the deaths of young children. What made the Robbins decision even more caustic was that 18 months later, an almost identical CCA majority granted a new trial to Cathy Henderson, sentenced to death for the 1994 capital murder of an infant in Travis County, because the state’s medical expert re-evaluated his opinion as to the cause and manner of death based on a change in the underlying science. Given that the factual distinction between Robbins and Henderson was one without a meaningful difference— especially to the jurors who convicted Robbins on expert testimony that the expert herself had disavowed— reasonable minds can differ as to whether the Robbins’ majority was wrong. I believe, with all due respect, they were a little weak on being right. My job was to convince the committee that S.B. 344 crafted a workable standard that would bring order to the stark disconnect between Robbins and Henderson. Henson gave me his take early on as to the odds of S.B. 344 becoming law. The good news was that the bill had been sponsored by John Whitmire of Houston, the dean of the Texas Senate, but more importantly, the committee chairman, which came within a coat of paint of being a home court advantage. Not surprisingly, the advice Henson gave me about testifying was reminiscent of what Will Smith, the date doctor in the cinema classic Hitch, counseled his clients after a girl had agreed to go out with them: “… it is no longer your job to try to make her like you. It is your job not to mess it up.” The bad news was that only 15 percent of all proposed bills ever become law, daunting odds tantamount to a No. 14 seed upsetting a three seed in the first round of the NCAA basketball tournament. Yet my college sportswriter persona took comfort in knowing that only days before, Harvard had done just that, taking out highly favored New Mexico on the first day of March Madness. Tuesday, March 12, was a beautiful afternoon that blow-dried TV weather-guessers love to call a “Chamber of Commerce Day.” A little before 1:30 p.m., I made my way through a standing-room-only crowd inside Room E- 1.016 in the basement of the Capitol and registered to testify. All I had to do was answer a trio of questions on an index card and drop it in a fish bowl that the committee clerk oversaw. When my name was called shortly after 3 p.m., I took my seat at a nondescript table that a generation of mothers once used to serve TV dinners. I thought my performance would be an amalgam of Jimmy Stewart’s fiery filibuster on the Senate floor in Mr. Smith Goes to Washington and Michael Douglas’s spirited speech to the White House press corps in the third reel of The American President. At least that’s what I thought. In reality, I had less than four minutes to speak before Chairman Whitmire had the orchestra play me off as they do at the Oscars: • I wasted half my time stressing my pedigree as an expert, someone who, as Mark Twain famously remarked, “is just some guy from out of town”; • complimented the chairman on having authored a terrific bill, a stratagem not unlike Eddie Haskell telling Mrs. Cleaver what a lovely dress she had on; • managed to get the bill number wrong, thereby blowing the 200 points you get on the SAT for spelling your name correctly; and • finally spoke of how this bill would provide relief when the scientific evidence had been contradicted not just by the underlying science as in Henderson but by the expert herself as in Robbins, the one sound bite that would matter when it came time for the CCA to divine just what the Legislature’s intent was in enacting this watershed bill. Confident that I had not come close to channeling Churchill, JFK, or even Bluto in Animal House, I passed the baton to Udashen and former Montgomery County District Attorney Michael McDougal, who, to his credit and at great political risk, had agreed early on that Robbins deserved a new trial. After both men used what little time I had left for them to make a compelling case as to why S.B. 344 should be favorably voted out of committee, the members did just that by a vote of 5-1, and the bill was on its way to the Final Four. In the weeks and months that followed, S.B. 344 overwhelmingly passed the Senate and, ultimately, the House. The bill, which takes effect on Sept. 1, 2013, was signed into law by Gov. Rick Perry on June 14. I got the good news the next day when my BlackBerry buzzed in between innings of a charity softball game in my hometown of West Hartford, Conn. Henson’s email to the cadre that helped make the improbable passage of S.B. 344 possible and created a fail-safe mechanism for Neal Robbins and every other defendant wrongfully convicted on the fool’s gold of contradicted, discredited, or simply sham “expert” testimony that is not science but ignorance, was simple. It said that the passage of S.B. 344 had been a team effort. And for once, it didn’t sound like a cliché. BRIAN WICE has served as a legal analyst for KPRC-TV, the NBC affiliate in Houston, since 2004 and has appeared on the Today Show, Good Morning America, Dateline, 48 Hours, The O’Reilly Factor, and On the Record With Greta Van Susteren. He was selected as the 2010 Attorney of the Year by the Harris County Criminal Lawyers Association and by the Houston Press as its Best Criminal Defense Attorney in 2009 and Best Appellate Lawyer in 2008.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/SoloSmall+Firm%3A+Mr.+Wice+Goes+to+Austin/1489672/172499/article.html.