Waivering Rights

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

In 1988 Christopher Ochoa confessed to raping and murdering a young woman at an Austin Pizza Hut. The 22-year-old man implicated his friend, 19-year-old Richard Danziger. Twelve years later, DNA testing proved they didn't commit the crime. It turned out that Ochoa had falsely confessed after being threatened with capital murder prosecution. While Ochoa lost his twenties to incarceration, Danziger lost much more. He was beaten so badly in prison that he has permanent brain damage.

Wrongful conviction horror stories like that case caused the Texas legislature to pass a law this session requiring the state to preserve biological evidence until an inmate dies, completes his sentence or is released on parole. Governor Rick Perry declared the issue a legislative emergency, and the bill passed almost unanimously. The sense of urgency was understandable: You can't test DNA evidence if it no longer exists, and Harris County was regularly disposing of biological evidence when its storerooms got full (see "Innocence Lost," by Lauren Kern, November 30, 2000).

Despite legislators' concerns, the Harris County district attorney's office does not want to stop cleaning house. The passage of the DNA bill and other judicial reforms prompted D.A. Chuck Rosenthal to tell the Houston Chronicle, "This session is going to rank among the worst in 25 years." His office then crafted a waiver that seeks to have defendants sign away their rights -- not just to the preservation of biological evidence but also to any notice of its destruction and to any related objections in the future.

A top D.A. says some prosecutors may withdraw plea bargains if defendants don't sign the waiver.
Joe Forkan
A top D.A. says some prosecutors may withdraw plea bargains if defendants don't sign the waiver.

"I guess what I expect next from the Harris County D.A.'s office is a waiver of fairness or a permission slip for innocent people to be incarcerated," says Keith Hampton, a lobbyist for the Texas Criminal Defense Lawyers Association. "I know of no other jurisdiction that is trying to get people to waive…the evidence which may prove them later to be innocent."

But First Assistant D.A. Bert Graham says his office is just being conservative and trying to follow the letter of the new law. DNA can be found even in a fingerprint on a forged check, he says. "We almost have to keep everything unless the defense agrees to let us get rid of it." And that could lead to costly and cumbersome storage problems for police, he says.

Critics argue that the D.A.'s office is taking a deliberately onerous view of the law, noting that prosecutors' own lobbying associations helped draft the language of the bill. Hampton points out that DNA can be preserved in extremely small amounts and that the state seems to have no trouble finding room to keep the DNA of convicted sex offenders.

"There is no piece of legislation that is perfect," says state Representative Scott Hochberg, a House sponsor of the bill. "If the implementation of this particular provision turns out to be a problem, then the recourse is to come back to the legislature in two years and to make changes -- not to deny defendants their rights."

Houston defense attorney Grant Scheiner suspects that the district attorney's real concern is not to save space but to save the embarrassment of overturned convictions. The DNA law does allow for the destruction of biological evidence after conviction, if the defendant receives notice and does not object within 91 days. But the D.A.'s office is presenting the waiver to defendants at the time they plead guilty. This has led to speculation that prosecutors want defendants to sign the waiver in return for plea bargains that carry reduced sentences. "If it's not a part of the plea agreement," asks Scheiner, "then why would you ever sign it?"

Scheiner says that defendants plead guilty for many reasons -- some of which have nothing to do with guilt or innocence. The defendant might think the evidence is overwhelmingly against him, he might lack confidence in his lawyer, he might be trying to protect someone, he might be fearful of a long prison sentence or, like Ochoa, the death penalty. Just because a defendant pleads guilty doesn't mean there will be no later need for biological evidence, he says.

"We have had no shortage of cases where there was doubt cast about the appropriateness of the initial plea agreement," says Hochberg. "To make this part of the plea agreement flies in the face of what we're trying to do with post-conviction DNA testing, which is to make sure evidence is [analyzed] regardless of what's gone down in the past and regardless of what pressures were put onto whom."

The waiver itself states that the document is not the result of a plea bargain agreement, and Graham affirms that there is no quid pro quo involved. "People should not be forced to waive that right just in order to plead guilty," he says. "If they do not want to sign it, then that's fine. That's their choice." But Graham also mentions a logically stretched argument he says "some prosecutors" may make: "We don't want to take a chance on an innocent person pleading guilty. If you're not willing to sign the waiver, that means there's a chance you're innocent. So we're going to withdraw this plea bargain right now and figure out what you know that indicates you're innocent."

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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