Waivering Rights

Are prosecutors circumventing the new law designed to preserve DNA evidence?

That's not the argument that was used on defense attorney Larry Newman in misdemeanor court early last month. "Their position was it's not part of the plea agreement because it's not written on the plea agreement itself," Newman says of the prosecutors in his client's case. "My position is, yes, it was part of the plea agreement because they wouldn't proceed with a plea without it."

Newman advised his client not to sign the waiver, because he would be falsely swearing that it was not part of a plea bargain, and that would be perjury. He asked to have the plea bargain statement stricken from the waiver, and prosecutors said the form could not be changed. Incidentally, there is no place on the waiver for a prosecutor's signature.

Fortunately for Newman, his case was reset. In the interim, the district attorney's office and the county criminal court judges decided to drop the waiver requirement in misdemeanor courts. Presiding Judge Jean Hughes says she and her colleagues were concerned about signing the waivers and about whether or not they were being used in plea agreements.

But the felony courts continue to use the waiver. "It is the state of Texas that's the party in interest to seeing that if they do a plea, if they have a conviction, it remains final and unassailable," says administrative state District Judge George Godwin. "If [defendants] come into court and say, 'I'm pleading guilty' and lie about it, then they ought to suffer the consequences -- not everybody else." Godwin considers saving the biological evidence in every case to be a "gross waste of resources."

"How cheap can you make the criminal justice system? That's the question they keep asking. That's the wrong question," says Hampton. "It has nothing to do with seeking truth or providing fairness…It's purely a bureaucratic response, and a pretty knee-jerk one at that."

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