An Unusual Criminal Proceeding With A Question About Eye Witness Testimony

We have a weird criminal proceeding occurring here in Travis County. In 1986, 26 year old Timothy Cole was convicted of rape by a Lubbock County jury and sentenced to 25 years in prison. Cole maintained his innocence throughout the trial. In 1995, another prisoner confessed to the crime, but no one really took notice until 1999, when Cole died in prison. At that time, the state called the victim and informed her that Cole had died from complications from asthma. She told the officials she was surprised because her attacker was smoking throughout the attack. And yet nothing happened.

In 2007, authorities finally began listening to Jerry Wayne Johnson, the inmate that had confessed to the crime, and last year DNA testing, under the guidance of Barry Scheck’s Innocence Project, confirmed that Johnson was the attacker. While the DNA test was satisfying, Cole’s family wanted his name cleared.  Unfortunately, Lubbock County refused to do anything about it so in stepped Travis County District Judge Charlie Baird.

Judge Baird is one of the more progressive judges we have. For example, Judge Baird has personally recruited businesses asking them to help give criminal defendants better jobs. He’s also set up a parenting program that offers Saturday parenting classes to some of his probationers, even going the extra step of paying for the program out of campaign funds and attending the weekend sessions with the participants. (To read more about him, you can check out articles from the Austin Chronicle and the Austin American Statesman.)

Judge Baird is conducting a two day hearing to clear Cole’s name. Judge Baird contends that the Texas Constitution requires courts to remedy a wrong they have caused (for a different viewpoint, see Paul Kennedy’s post “Is Innocence a Bar to Execution?”). At the end of the hearing today, Timothy Cole is likely to become the first Texan to be posthumously cleared of a crime.

But it also struck me that Cole’s conviction is a great example of the dangers of eyewitness testimony. Cole was convicted primarily on the identification of the victim, who picked Cole out of a “lineup” (I use that term loosely; she was apparently given a color photo of Cole and black and white photos of other potential perpetrators.).

For years, experts have been concerned about the reliability of eye witnesses (a famous study on the issue that looked at eye witnesses’ reliability in recall information regarding car wrecks was published way back in 1978). And during yesterday’s hearing, attorneys from the Innocence Project called as an expert witness, Mike Ware, a Dallas County prosecutor. As you may know, Dallas County has seen 19 people exonerated through DNA testing in the last couple of years, and Ware said that all but one of those cases involved a mistaken identification.

It’s known that eye-witness testimony is a problem, and yet it still remains the holy grail in the courtroom. What are we as lawyers supposed to do about that? I don’t really have any answers, just a lot of questions.

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Fight Over Constitutionality of Medical Malpractice Limits

Tort reform lobbying groups took an unusual step this week by filing a declaratory action suit here in Austin trying to establish that the 2003 medical malpractice caps on liability are constitutional.  The suit stems from a lawsuit against Corpus Christi doctor John McKeever.  In that suit, patient Adrian Cerny sued Dr. McKeever after Cerny developed a serious infection following surgery.  As part of the suit, Cerny alleged in his pleading that the Chapter 74 caps on medical malpractice damages violated various provisions of the Texas constitution.  Instead of litigating the constitutionality in the Corpus court, Dr. McKeever, tort reform lobbyist group Texas Alliance for Patient Access, the Texas Medical Association,  and the Texas Hospital Association filed suit against Cerny in Travis County asking the Travis County courts to declare that the caps are constitutional.

This is a highly unusual move that I think will ultimately be unsuccessful. Dr. McKeever and the lobby groups filed their suit based on a provision in the act that said the constitutionality of the statute “may” be addressed in Travis County.  The provision is not mandatory.  It is the general rule in Texas that when two suits are filed litigating the same issue, the first suit usually controls, and the second suit must be abated  (there are, of course, exceptions, but none that I think would apply here).  Because it is not mandatory that the constitutionality be challenged in Travis County, I think it is likely that Cerny will file a plea in abatement arguing that the constitutionality is already being litigated in the Corpus suit.  The plea should be granted, and the litigation over the constitutionality should continue in Corpus.

The real question is why use the Cerny case as a test case?  Mike Hull, the lobby groups’ attorney, says that he chose this suit because Cerny’s lawsuit “has the broadest number of challenges to the Constitution.”  But that’s not really true.  The pleading by Cerny is not much different than most challenges.  In fact, it may be more limited.  Probably the best challenges to the statute are based on arguments that the statute violates the US constitution.  Cerny doesn’t object to the caps on any federal constitutional basis.  Perhaps we’ll see in the coming months the real reason that the lobby groups chose this case.

It will be interesting to see how this turns out.  Regardless, we won’t have a dispositive answer until the federal courts chime in.

Travis Poling of the San Antonio Express News has an article on the case (and it quotes me).

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Austin Drunk Driving News

It’s not directly related to personal injury litigation, but a little history was made yesterday when a Travis County jury convicted a drunk driver of murder for killing someone in a car wreck.  This was the first murder conviction in Travis County for a drunk driver.  The story from the Austin American Statesman is here.

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To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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