subsequent writs, Article 11.073, and a question about future actual innocence claims

(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(b) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.

(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.

The limitations on subsequent filings in Section 4 reinforces how important it is for applicants to plead all possible grounds in their first writ. This is why I strongly discourage inmates from filing pro se writs unless they have no reasonable expectation to come up with funds to hire counsel inside of 2-3 years of their conviction. The risks for a pro se applicant of getting a quick white card denial from the Court of Criminal Appeals is just too great, especially if a legitimate factual basis exists for relief that requires independent investigation.

So, try not to be in a position where you need to file another writ!

But, here are some scenarios where you may be able to effectively litigate a subsequent writ:

A recantation by a material state witness may be considered evidence that was previously unavailable at the time the first writ was filed, but courts will be very skeptical of the witness’ credibility. You will need much more than a simple affidavit from this witness — there will need to be an explanation as to why this witness did not come forward sooner.

Changing caselaw can also open doors to applicants who otherwise were procedurally barred from challenging their convictions. The most obvious example of this was the Supreme Court holding that capital punishment for juveniles was unconstitutional. Likewise, findings that portions of certain statutes are facially unconstitutional will allow inmates to file subsequent writs if they were convicted under that statute.

Post-conviction credibility issues with law enforcement officers involved in an inmate’s conviction can also allow for a subsequent filing. An officer who lies in a case or commits a crime while on duty can taint all of his previous cases.

In cases involving scientific expert testimony, the most obvious route for filing a subsequent writ lies in Article 11.073, aka the “junk science writ.” This article allows applicants to specifically allege either new scientific evidence/methodologies which would be material to overturning their conviction or to present new evidence that debunks old scientific evidence/methodologies used by the State to secure a conviction.

However, article 11.073 has had an underwhelming impact on Texas Criminal Justice. Why? Partly because, despite the article’s explicit reference to “relevant scientific evidence,” the article doesn’t really expand an inmate’s ability to contest his conviction. Both Section 3 and Section 4 of the original Article 11.07 are written broadly enough to include attacks on changed scientific methodologies.

More importantly, the judicial deference towards the forensic “soft sciences” has not changed, despite a growing expert consensus (outside the law enforcement community, at least) that fields such as blood spatter, fingerprinting, and hair analysis are not always reliable (to put it charitably). Until criminal courts are ready to recognize that challenges to convictions based on flawed soft science evidence, Article 11.073’s impact will be limited.

Which leads to another question. As the first wave of DNA exonerations runs it course, what will actual innocence claims look like in the future? DNA testing and probability statistics have drastically improved. Most convictions in which biological evidence would be material to the State’s case (such as murders, sexual and aggravated assaults, etc), now involve DNA testing. The innocence projects have mostly vetted older cases that required new DNA testing. So where is the next frontier?

In my opinion, defense attorneys will have to become more sophisticated in presenting compelling scientific and statistical evidence that shows many law enforcement techniques, from identification procedures to sexual assault forensic interviews, are often flawed.