831 Texas Bar Journal • September 2013 texasbar.com

Mr. Wice Goes to Austin

SOLO/SMALL FIRM

How a sole practitioner worked with a team of attorneys to change the law.BY BRIAN WICE

“There are, in effect, two things, to know and to believe oneknows; to know is science; to believe one knows is ignorance.”

—Hippocrates

Mr. Wice Goes to Austin

OF ALL THE THINGS I ENVISIONED MYSELFDOING AS A SOLO CRIMINAL DEFENSEATTORNEY, TESTIFYING BEFORE THE TEXASSENATE WAS MOST CERTAINLY NOT AMONGTHEM. Perhaps it was because I feigned the same degreeof interest in high school civics class that a seven-year-old has in quantum physics. Maybe it was the bitter after-taste I had as a legal analyst for NBC covering the partisan,preening, and vacuous members of the House OversightCommittee in their self-styled “investigation” of formerpitching ace Roger Clemens in February 2008. Whateverthe reason, my degree of enthusiasm for participating inthe legislative process on any level was akin to watchinga Here Comes Honey Boo Boo marathon on TLC.

All of that changed with a late-spring phone call fromAmarillo criminal lawyer Jeff Blackburn, founder and chiefcounsel of the Innocence Project of Texas. Blackburn, GaryUdashen, a top-notch Dallas criminal lawyer, and ScottHenson, an Austin lobbyist and author of the criticallyacclaimed blog “Grits for Breakfast,” had drafted Senate Bill344, which would ensure access to the courts for defendantsconvicted on junk science, including those whose initial

post-conviction writs had been rejected. S.B. 344, part ofthe 83rd Legislature’s laudable attempt at reducing thespecter of wrongful convictions—highlighted by S.B. 1611,otherwise known as the Michael Morton Act, whichrequired prosecutors to open all of their files to the defenseduring pre-trial discovery—provided that a defendant couldobtain relief by a showing of a preponderance of the evi-dence that scientific evidence essential to his convictionhad been “contradicted” by relevant scientific evidencethat was unavailable at his trial. Almost identical versionsof S.B. 344 made it out of committee the past two legisla-tive sessions but died in the final days of those chaotic con-claves. Blackburn wanted to know if I would drive in fromHouston for the day and testify in support of the bill.

Blackburn’s call was no coincidence. He knew that Ihad suffered a bitter defeat two years earlier when theCourt of Criminal Appeals, by a vote of 5-4, had denieda new trial for Neal Robbins, who was serving a life sen-tence for the 1998 capital murder of a young child inMontgomery County. The bare majority rejected the rec-ommendation of the trial judge, veteran jurist K. MichaelMayes, that a new trial was warranted because the state’s

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key witness, Dr. Patricia Moore, the assistant medicalexaminer who performed the autopsy, had re-evaluatedher trial testimony and concluded, based on the additionalfive years of training and experience she had acquired,that the cause and manner of death should have been ruled“undetermined” and not “homicide.” Notably, Moore’sexpert opinions had been jettisoned by her superiors inRobbins and a number of other cases involving the deathsof young children. What made the Robbins decision evenmore caustic was that 18 months later, an almost identi-cal CCA majority granted a new trial to Cathy Hender-son, sentenced to death for the 1994 capital murder of aninfant in Travis County, because the state’s medicalexpert re-evaluated his opinion as to the cause and man-ner of death based on a change in the underlying science.

Given that the factual distinction between Robbinsand Henderson was one without a meaningful differ-ence—especially to the jurors who convicted Robbins onexpert testimony that the expert herself had disavowed—reasonable minds can differ as to whether the Robbins’majority was wrong. I believe, with all due respect, theywere a little weak on being right. My job was to convincethe committee that S.B. 344 crafted a workable standardthat would bring order to the stark disconnect betweenRobbins and Henderson.

Henson gave me his take early on as to the odds ofS.B. 344 becoming law. The good news was that the billhad been sponsored by John Whitmire of Houston, thedean of the Texas Senate, but more importantly, the com-mittee chairman, which came within a coat of paint ofbeing a home court advantage. Not surprisingly, theadvice Henson gave me about testifying was reminiscentof what Will Smith, the date doctor in the cinema classicHitch, counseled his clients after a girl had agreed to goout with them: “… it is no longer your job to try to makeher like you. It is your job not to mess it up.” The badnews was that only 15 percent of all proposed bills everbecome law, daunting odds tantamount to a No. 14 seedupsetting a three seed in the first round of the NCAAbasketball tournament. Yet my college sportswriter per-sona took comfort in knowing that only days before, Har-vard had done just that, taking out highly favored NewMexico on the first day of March Madness.

Tuesday, March 12, was a beautiful afternoon thatblow-dried TV weather-guessers love to call a “Chamberof Commerce Day.” A little before 1:30 p.m., I made myway through a standing-room-only crowd inside Room E-1.016 in the basement of the Capitol and registered totestify. All I had to do was answer a trio of questions onan index card and drop it in a fish bowl that the commit-tee clerk oversaw. When my name was called shortly after3 p.m., I took my seat at a nondescript table that a gener-ation of mothers once used to serve TV dinners. I thoughtmy performance would be an amalgam of Jimmy Stewart’s

fiery filibuster on the Senate floor in Mr. Smith Goes toWashington and Michael Douglas’s spirited speech to theWhite House press corps in the third reel of The AmericanPresident. At least that’s what I thought. In reality, I hadless than four minutes to speak before Chairman Whitmirehad the orchestra play me off as they do at the Oscars:

• I wasted half my time stressing my pedigree as anexpert, someone who, as Mark Twain famously re-marked, “is just some guy from out of town”;

• complimented the chairman on having authored aterrific bill, a stratagem not unlike Eddie Haskelltelling Mrs. Cleaver what a lovely dress she had on;

• managed to get the bill number wrong, therebyblowing the 200 points you get on the SAT forspelling your name correctly; and

• finally spoke of how this bill would provide reliefwhen the scientific evidence had been contradictednot just by the underlying science as in Hendersonbut by the expert herself as in Robbins, the one soundbite that would matter when it came time for theCCA to divine just what the Legislature’s intent wasin enacting this watershed bill.

Confident that I had not come close to channelingChurchill, JFK, or even Bluto in Animal House, I passedthe baton to Udashen and former Montgomery CountyDistrict Attorney Michael McDougal, who, to his creditand at great political risk, had agreed early on that Rob-bins deserved a new trial. After both men used what littletime I had left for them to make a compelling case as towhy S.B. 344 should be favorably voted out of commit-tee, the members did just that by a vote of 5-1, and thebill was on its way to the Final Four.

In the weeks and months that followed, S.B. 344 over-whelmingly passed the Senate and, ultimately, the House.The bill, which takes effect on Sept. 1, 2013, was signedinto law by Gov. Rick Perry on June 14. I got the goodnews the next day when my BlackBerry buzzed in betweeninnings of a charity softball game in my hometown ofWest Hartford, Conn. Henson’s email to the cadre thathelped make the improbable passage of S.B. 344 possibleand created a fail-safe mechanism for Neal Robbins andevery other defendant wrongfully convicted on the fool’sgold of contradicted, discredited, or simply sham “expert”testimony that is not science but ignorance, was simple.It said that the passage of S.B. 344 had been a team effort.And for once, it didn’t sound like a cliché. TBJ

BRIAN WICEhas served as a legal analyst for KPRC-TV, the NBC affiliate in Hous-ton, since 2004 and has appeared on the Today Show, Good MorningAmerica, Dateline, 48 Hours, The O’Reilly Factor, and On the RecordWith Greta Van Susteren. He was selected as the 2010 Attorney ofthe Year by the Harris County Criminal Lawyers Association and by

the Houston Press as its Best Criminal Defense Attorney in 2009 and Best AppellateLawyer in 2008.

SOLO/SMALL FIRM