Texas: The Kinder, Gentler Hang ‘Em High State

Tim Cole couldn’t tell his own story, so his family recounted the saga to the hard-bitten Texas legislators this past spring. The convict had insisted he was innocent up until the day he died. He had refused parole because that would have required him to admit he was guilty of raping a fellow student at Texas Tech University. The ordeal was wrenching: Cole wept during the nights as he awaited a trial that would sentence him to 25 years in jail. Twice during his prison term he was found unconscious in his cell, a result of the asthma that had plagued him since childhood. The third time he suffered an attack, Dec. 2, 1999, he died from heart failure. Then, in 2007, another man confessed to the crime and Cole was declared innocent. Texas lawmakers wept at the tale; as a result, the state with the reputation for being the toughest on crime came up with one of the most generous and supportive programs to compensate those wrongfully convicted: the Tim Cole Act.

“I think Tim Cole’s story moved a lot of people,” says Lubbock, Texas, attorney Kevin Glasheen, who represents 12 men who were exonerated after serving lengthy terms for rape. “As far as the politicians go, there are a lot of Republicans who do not like abusive government power.” But legislators from both parties did more than shed tears. Apart from the Tim Cole Act, they passed a second law creating a well-funded office of expert appellate lawyers to represent death-row inmates, a move to overcome the tales of sleepy defense attorneys and inept lawyering. The two new laws are now being implemented, and their backers hope they will mitigate the state’s hang-’em-high image.

(Read about the decline in the number of death sentences in Texas.)

The Tim Cole Act provides $80,000 for each year of wrongful incarceration and adds free college tuition, plus financial and personal counseling. Unlike past lump-sum payments, the new compensation will be paid out in a mix of monthly payments, with an upfront lump sum and an annuity that can be passed on through a recipient’s estate. The new law also sets up an investigative panel, the Tim Cole Advisory Panel on Wrongful Convictions.

(Read about how the tide is shifting against the death penalty.)

Glasheen’s 12 clients are among 38 Texas prisoners who were cleared by DNA testing thanks to the efforts of the New York–based Innocence Project. He filed federal civil rights lawsuits on behalf of his clients against several Dallas-area police departments and municipalities. Facing a long, arduous legal process, Glasheen also proposed a legislative solution to Dallas-area civic leaders. The legal fight would be expensive for both sides, Glasheen told them, and the fundamental question was one of fairness. This past spring, state senator Rodney Ellis, a Houston Democrat and a longtime champion of the Innocence Project, and state senator Bob Duncan, a Republican and — like Cole — a Texas Tech alumnus, sponsored the Tim Cole Act.

Glasheen, a self-described Republican from the “libertarian wing of the party,” hopes new DNA testing on old evidence will free more prisoners. However, that hope is limited: Dallas County kept evidence on file, hence the large number of exonerated prisoners from that area, but evidence in Houston was lost in a flood, and smaller counties across Texas did not keep evidence once the appeals process ran out. “There’s a whole bunch of guys down there who were convicted on just eyewitness identification,” Glasheen says, as Cole was. There is now a national campaign to press a best-practices written policy for lineups and eyewitness evidence. Dallas has adopted the new standards.

The second law passed by the legislature will set up new standards and funding for indigent defense appellate counsel programs. Texas was embarrassed by the 2001 U.S. Supreme Court ruling that ordered a new trial for a death-row inmate whose lawyer slept through much of his proceedings in Houston in 1984. It responded after the ruling by boosting funds for indigent counsel. Despite that, studies showed that death-row inmates were still often badly served by appellate counsel. “Since 2004, 2005, there has been documented some horrible lawyering,” says Andrea Marsh, executive director of Texas Fair Defense Project. In one case, a habeas appeal was filed by an attorney who simply cut and pasted an old appeal and changed the defendant’s name, leaving the facts of the old case in place, Marsh says.

“These cases piled up, and there got to be a consensus that something should be done,” Marsh says. The conservative-dominated appeals court, the Republican-led legislature and Republican Governor Rick Perry were not opposed to reform. “The courts, officials were tired of being embarrassed all the time,” Marsh says. The new Office of Capital Writs, scheduled to be in place by 2010, will deal with new cases, not those already in the pipeline.

The Tim Cole Act and the new state-funded appellate office may not change the image of Texas justice beyond the state. How outsiders feel about Texas justice “probably depends on whether you are universally opposed to the death penalty,” Marsh says. “But the hope [in Texas] is that we will stop seeing stories where the defendant never had a fair shot.”