We are cleaning out our evidence locker and have come across a number of pieces of physical evidence from capital cases in which the defendants have already been executed. Some of us think we should hang on to this stuff forever. Others really want the space. Has any one addressed this issue in their office?
Gosh, our office hasn't had so many executed defendants that it's proven to be a big space problem.
I'm not much of a post-writ guy, but just thinking off the top of my head, doesn't an execution pretty much end all potential habeus corpus relief?
Maybe this is some help.
Under CCP 38.39(d) even biological evidence can be destroyed after a convict is executed if the State notifies the last defense attorney of record and the proper trial court and waits 91 days. If a written objection is not received within that time period, the evidence can be destroyed. Seems that if biological evidence can be handled this way, then if we handle other physical evidence the same way we should be protected.
CCP 2.21 also lays out when clerks may dispose of evidence in non-capital cases.
If anyone is aware of other provisions governing the disposal of evidence--especially in death penalty cases, please share.
I suspect that many counties have been destroying this stuff, but there may not be any actual statutory authority to do so.
Unfortunately, CCP 2.21 does NOT address the disposal of evidence in capital cases. A house bill to allow that was filed by the clerks last session (the # escapes me right now), but it died in Whitmire's Senate Committee. The bill will be refiled and pursued anew. The Harris Co. clerks are really pushing it b/c they don't know what to do with all the stuff they're holding.
Proceed with caution. While there would be a question of standing should anyone object, it could still be problematic for public officials.
See the Local Government Records Act in the Local Government Code, sections 201.001 - 203.001. Requires record control schedules concerning the retention period for a local government record before it can be destroyed.
Article 38.39 allows at least the destruction of biological evidence retained by the clerk because it controls in the event of a conflict with 2.21.
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