Winters v Judge, CDC3 of Tarrant County, the case of the day for 11/03/2003, points out the way this statute invites frivolous claims by defendants for post-conviction DNA testing. I spoke with one of our appelate lawyers today who told me one of my defs from '99 was asking for DNA testing. This is puzzling inasmuch as his wife told me back then that he had a vasectomy in '97. The forensic examiner confirmed this when she told me she had found "plenty of seminal fluid but no sperm. This guy has had a vasectomy or a bad case of the mumps." I believe it was John Bradley et al in Willaimson County who got the first perjury conviction for falsly swearing to such a writ? I would like to see a requirement that the def first make out a prima facie case for DNA testing before we take these cases further.

Ummm, check out Art. 64.01(a).

I meant that in light of Winters, the def should make out a pf case before the court is required to appoint counsel.

The Legislature got us part of the way there. SB 1011 changed 64.01(c) to only require the appointment of counsel if "the court finds reasonable grounds for a motion to be filed ...." This was a specific response to complaints by local courts about excessive and expensive frivolous DNA claims.

What is left unsaid is how those "reasonable grounds" are to be established, but considering the nature of these cases, that lack of detail will probably benefit the State more often than not.

Once again TCDAA leg. liason is way ahead of me. It seems to me from the cases I have seen that many of the requests are patently unreasonable. I wouldn't mind if the close calls receive counsel; that's only just.

[This message was edited by BLeonard on 11-10-03 at .]

I now get to work with the DNA team, and the vast majority of our motions are patently frivolous. Even the frivolous ones require an inordinate amount of time on our part to generate a response.