Remember that good collection of frivolous and silly post-conviction DHA requests we had going? It was great, because we are collecting some good stuff that could be very helpful in narrowing that statute in the future.

But we lost it all. All the great stories. So I'm looking for a do-over. If you know a really silly post-conviction DNA request, we'd love to see it here....or e-mail it to me at kepple@tdcaa.com.

Thanks!

Even before the SB 7 DNA request forum got deleted, we talked about announcing a contest in the newsletter to see who could post the best DNA request story (to be judged by the legal brain trust here at the association). So now you have another incentive to share your DNA case info at tdcaa.com! The winner will receive a custom TDCAA cap. Thanks for your help.

Oh, give the man a hat!

I think there is a real possibility of creating some sort of "doorkeeper" function for the dismissal of clearly frivolous requests prior to the appointment of counsel and costs to the county. a lot depends on whether we continue to get these fivolous things, or whether they die down after a period of "pent-up demand."

I doubt that the frivolous motions will die out. After all, how many of us continue to get a steady stream of frivolous writs?

The request that I recieved had no specific reason for DNA testing other than his conviction was "fundamentally unfair". There was no evidence seized or that could have been seized in his case. He gave a full confession and pled guilty. In his prayer he said "he would like to add, that it would only be fair to have his citizenship reinstated and that he be granted a full unconditional pardon clearing his name. That there be no further confinement in prison and that the Court grant a non-public hearing on this issue and withhold it from the newspapers."
Thanks goes to Roe Wilson and the Harris County DA's Office for the paper and forms in the TDCAA seminars of September and December.

The lead story in the issue of the "Prosecutor" that you should receive next week includes a discussion of this topic and another call for entries for the DNA "Darwin Awards" for Rob to have in his files. We have more than one hat available Thanks for your help.

I prosecuted that case David Newell posted. It was not easy. If he won't take the hat, I want it.

hat's on it's way!

In regard to requests for DNA testing in which no physical evidence was ever collected (other than written and tape recorded confessions), a suggestion . . .

The evidence that Chapter 64 contemplates testing is rather restricted. See TEX. CODE CRIM. PROC. at. 64.01(b). Thus, where a motion requesting DNA testing fails to meet the threshold requirements, (e.g., no evidence to test; the evidence was not the basis of the conviction; the State did not have the evidence at the time of trial) the motion is obviously insufficient.

Notably, "A convicted person is entitled to counsel during a proceedingunder this chapter." TEX. CODE CRIM. PROC. art. 64.01(c). Does an obviously insufficient motion allow a proceeding to initiate? Arguably not, thus the motion can be summarily denied without the need for findings under arts. 64.03 or 64.04, allowing nothing to appeal. See TEX. CODE CRIM. PROC. art. 64.05. This is akin to the decision whether to issue a writ of habeas corpus (other than 11.07), in which a decision to deny is appealable, but no appeal lies from the trial court refusal to issue it.

Just a thought.
Jeff

Today, I received a request for DNA testing in a murder case. The defendant shot her landlord at point-blank range in the chest because she thought he was an international terrorist working with former President Clinton. The jury rejected her insanity defense and gave her 60 years in prison.

She has requested DNA testing to challenge the identity of the victim, who she says is actually the terrorist known as "The Jackal." Maybe you read the book or saw the movie, apparently she did.

So, does she have a right to a lawyer and a hearing?

An absolute classic, and worthy of an award...

Our latest DNA request came from a defendant who pled guilty to Indecency with a Child by contact after touching the genitals of a male child. He received a 10 year sentence (7 years ago) and has now requested the court appoint an attorney to prepare a motion for DNA testing. So the citizens of our state are having to pay his court-appointed attorney to investigate his claim and then figure out what his obligation will be where any request would be clearly frivolous under the circumstances.

Geez! By the way, what do you tell the defense lawyer who was appointed once he reaches the same conclusion you do about the claim being frivolous. What is he supposed to do then?

Not actually a competitor for a hat, but a prime example of why the law is fatally flawed nonetheless:

In 1993, 29 year old defendant shoots her 79 year old husband. (Before you say anything, I looked at the pictures and bank records and there was definitely no Anna Nicole Smith thing going on here.) She emptied one pistol into him, got another one, and emptied it as well. He had ten entry wounds, several in the back.

She calls the police, confesses shortly thereafter, and leads them to the murder weapons. Because she claimed mental problems and a history of abuse, the case eventually pleads out to voluntary manslaughter for 13 years with a deadly weapon.

Now she wants DNA testing. Best I can figure, the only DNA is going to be her late husband's gray matter.

And for this, we are going to spend money?

The only saving grace is that she filed her request in the context of a writ of habeas. I can bar her procedurally for the time being until a writ writer helps her file the motion properly.

Thank you Texas Leg.

[This message was edited by Dan Bradley on 02-28-02 at .]