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Timothy Cole *LINK*

Exoneration at center of DNA and evidence bills
Associated Press
Feb. 15, 2009, 10:50AM

AUSTIN — Ten years after he died in prison serving time for a rape he didn’t commit, Timothy Cole had his day in court. If police and advocates for the wrongfully convicted have their way, he’ll get another at the Legislature.

Both groups are separately pressing lawmakers to pass bills they say could help keep others from suffering the same fate as Cole, who earlier this month became the first Texan posthumously exonerated of a crime.

A measure sought by some Texas police chiefs would allow taking DNA from suspects arrested for mid-level misdemeanors on up, which could include offenses ranging from indecent exposure to writing a bad check for child support.

The other would set legal standards for how eye witness evidence can be collected by police.

Now that the House finally appointed committees, lawmakers from both chambers will soon be debating and voting on bills. House and Senate committees are holding meetings this week.

Texas is one of several states that draw DNA samples from anyone convicted of a felony and those arrested for particularly violent crimes, such as sexual assault and murder. The federal government takes samples from everyone arrested by federal officers.

Austin Police Chief Art Acevedo is among the law enforcement officials pushing to collect DNA from suspects in Class B misdemeanors. Their plan could mean sampling more than 800,000 people a year, some of whom may never be convicted or even go to trial.

Experts say that while a few states take DNA in misdemeanors involving sex crimes, none has gone as far as the Texas idea. The American Civil Liberties Union worries that police might make arrests just to fish for a DNA match.

“We think this is an outrageous invasion of privacy,” said Rebecca Bernhardt, policy director of the American Civil Liberties Union of Texas.

“This is a step in the direction of creating a DNA database of every person in Texas, which is something Texans should be against,” she said. “DNA is the most basic and private information a person has.”

Acevedo says the samples would help police find criminals and exclude innocent people. The DNA proposal would include destroying records when charges are dropped or someone is acquitted at trial, Acevedo said.

“DNA has proven to be a tool that has gone a long way in proving the innocence of wrongly convicted individuals,” Acevedo said, noting the Cole case. “This is an opportunity to eliminate people early on.”

But using the Cole case to press the issue is misleading, the ACLU says. As a felony rape suspect, Cole’s DNA could have drawn under existing laws.

Some lawmakers, even those who have pushed for reforms in post-conviction DNA testing that could help prove wrongful convictions, are leery of expanding DNA collections as far as the police chiefs want to go.

Sen. Rodney Ellis, a Houston Democrat, said Texas should be wary of expanding police powers on such a broad scale.

“There is a very fine line to be walked balancing civil liberties, constitutionality, and trying to build a DNA database that would serve good public interests,” Ellis said.

It’s an issue lawmakers have debated in the past “and the consensus has been to not expand mandatory DNA testing,” he said.

Cole was convicted resulted largely from faulty eyewitness identification of him as the rapist.

Ellis has filed bills to set legal standards for how police lineups are conducted. He also wants to create a state Innocence Commission to investigate wrongful convictions.

Michele Mallin, the rape victim in Cole’s case, was a Texas Tech University student when she was attacked in Lubbock in 1985. She picked Cole out of a photo lineup that included five other pictures. All were standard jail mug shots except for Cole’s color Polaroid. She also later identified Cole in a live lineup and again at trial.

The Associated Press does not typically identify rape victims but Mallin came forth publicly to help clear Cole’s name.

Mallin says she remembers telling police “I think that’s him” when she first saw Cole’s picture, but that investigators encouraged her to be more certain. A note in the case file suggested she was more confident of selecting Cole than she really was.

Experts at Cole’s exoneration hearing were highly critical of how the lineups were conducted.

Cole’s photo would “stand out like a sore thumb,” said Mike Ware, a Dallas County prosecutor in charge of that office’s conviction integrity unit.

Ellis’ bill requires lineups be conducted by someone who doesn’t know which person is the suspect. That would prevent them from encouraging witnesses to pick that person.

Witnesses also would be told the perpetrator may not be in the lineup. And they would provide a statement of how confident they are of their choice. All individuals in the lineup would have to fit the description of the suspect.

At least eight other states require some of the same or similar standards, Ellis’ office said, and some are already being used by local police and sheriffs.

Prosecutors are watching the eyewitness bill closely, said Shannon Edmonds, spokesman for the Texas District and County Attorneys Association.

“If there is a better way to do it, they’re interested,” he said.

But while prosecutors want to take the best evidence possible to trial, they worry that writing standards into law could get some good cases thrown out by a judge if someone makes a mistake.

“The criminal goes free because the constable blundered,” Edmonds said.

Attorney Barry Scheck, who helped found the Innocence Project, a national organization that assists prisoners who could be cleared by DNA testing, said Texas needs to make the eyewitness changes.

“The protestations of those who say we can’t do it, it’s impractical, it’s too hard, the days of those kinds of protests really have to go,” Scheck said. “It’s time has come.”

The judge who exonerated Cole said the Texas judicial system failed Cole, his family and the rape victim.

“Timothy Cole suffered the greatest miscarriage of justice imaginable,” Judge Charles Baird said. “This system is broken ... and we are fools if we don’t fix it.”

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