After a mentally ill rape victim fell through the cracks in the Harris County jail — languishing in general population for 27 days before prosecutors could secure her testimony against her rapist — state lawmakers are considering a bill they say would have protected the victim's rights in the controversial case.
Harris County District Attorney Kim Ogg traveled to Austin Tuesday to testify before the Senate Committee on Criminal Justice in support of the bill. Filed by State Senator John Whitmire (D-Houston), SB291 would overhaul the process that allows counties to jail uncooperative, critical witnesses to secure their testimony in high-stakes trials, which happens only in rare circumstances. The committee unanimously passed it Tuesday.
Ogg said the bill would "prevent anybody from getting lost in the system," as happened to the rape victim, Jenny. The new law would require a hearing before a witness can be put in jail — called a writ of attachment — and if the attachment order is signed, then the witness would be appointed an attorney.
"This bill would simply provide constitutional due process to crime victims like Jenny who are subpoenaed and are necessary witnesses in cases, but should not be brutalized in the process," Ogg told the committee. "While this bill comes about as a result of very unfortunate circumstances that happened to one person, it revealed that there was a process in Texas of jailing witnesses — not all with these results, not all bad and certainly not all illegal, but it did raise the need for protection of victims in counties across the state."
Throughout her campaign for office last year, Ogg lambasted the Devon Anderson administration for the way it handled Jenny's case. Jenny, who suffered from schizophrenia and bipolar disorder, had a mental breakdown while testifying in court against her rapist, then during a stay at the hospital threatened to run away and never return to finish testifying. The prosecutor, unable to find other hospitals or mental health facilities where Jenny could stay, finally settled on jail as a last resort. Jenny's mother, undergoing chemotherapy for breast cancer, had told the prosecutor she could not take in her daughter at home — yet emails later provided to the Houston Press showed she had not been aware that the alternative was jail, and had believed her daughter would be placed in a mental health facility.
Jenny instead remained in jail for nearly a month — in general population, where her mother and attorneys say she was beaten multiple times.
"Putting a victim in jail should never be an option," Jenny's mom wrote to lawmakers in a statement. "Today Jenny is still struggling with the entire trauma she endured by the rapist and also being re-victimized by the justice system. I’m asking you as Jenny’s mother and a concerned citizen to consider passing SB291."
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SB291 garnered strong vocal support from lawmakers on both sides of the aisle. When two prosecutors from Bexar County spoke up in opposition to the bill, they were repeatedly shot down by senators, who wrote off their concerns as unfounded and perplexing. A frustrated Whitmire put it plainly enough: "They're just wrong," he said at one point.
Michael Hoyle, Bexar County's chief of the criminal trial division, said he believed that this was only Harris County's problem and that there was no need for the statewide law. He said appointing defense counsel for potentially jailed witnesses would be an unnecessary cost for taxpayers. And he was also concerned that requiring a hearing to be held before a witness could be jailed would give judges too much leeway to decide whether the witnesses were important enough for the trial. He feared that "inexperienced" judges, whose judgement he said he didn't trust, would make bad decisions. Republican State Senator Joan Huffman, sharply disagreeing with Hoyle, said it was "one of the most interesting arguments I've ever seen."
"When you [jail witnesses], you take someone's liberty away," Huffman said. "So why would you object to them having counsel at that point? It's still a citizen who's being incarcerated."
She added to his point about the cost of appointing attorneys for jailed witnesses: "Sometimes we have to spend money to preserve people's rights."