Texas

Texas has enacted a law making it easier for convicted defendants to get DNA testing, according to the Innocence Project.

People who have been convicted of crimes now have to show that there a reasonable likelihood that evidence contains DNA, Texas Lawyer's Angela Morris reports. The law was enacted in response to Texas Court of Criminal Appeals rulings strictly interpreting Texas' "post-conviction DNA testing statute 'to require proof that biological evidence exists before a judge can allow testing to see if exculpatory biological evidence exists. This new interpretation severely restricts a judge's ability to order DNA testing … which in turn prevents the discovery of exonerations in cases where exculpatory evidence is often microscopic,'" Morris reports.

Who knew? Texas is the last state in the country to have a "pick-a-pal" system in which grand jurors are selected through a list of individuals prepared by an acquaintance chosen by a local judge. Texas legislators have approved bills to end this method of selecting grand juries, the Houston Chronicle's Brian Rosenthal reports.

The difference between the state House and state Senate versions is a provision requiring courts empaneling grand juries to consider '"the county's demographics related to race, ethnicity, sex and age,'" Rosenthal further reports.

Houston Chronicle columnist Lisa Falkenberg won a Pulitzer for revealing the problems with Texas' method of selecting grand juries, including "instances of judges' friends sitting on multiple grand juries and potential conflicts of interest going undetected, such as allowing former police officers to hear a case in which a lawman is accused of a crime."

The Lone Star State's ban on same-sex marriage is unconstitutional, a county probate judge ruled today, Los Angeles Times' Lauren Raab reports. Travis County Probate Judge Guy Herman ruled that Texas' constitutional and statutory bans violate the due process and equal protection clauses of the 14th Amendment.

A federal judge already overturned the bans last year.

Last year, the Texas Court of Criminal Appeals ruled that a death row inmate couldn't get DNA testing on evidence in his case because he didn't prove that it contained biological material. According to the Associated Press, now a Texas lawmaker has proposed a reform to the crime-scene DNA testing law that he authored to allow any convicted person to request testing on "evidence that is reasonably likely to contain biological material," not just of evidence that "'containing biological material.'"

Several conservatives have joined United Nations human rights lawyers seeking to stop the execution of a severely mentally ill Texas man. Scott Panetti's execution is slated to proceed today at 6 p.m. unless last-minute appeals filed yesterday have any effect, UPI reports.

Kathryn Kase of the Texas Defender Service told the Los Angeles Times, '"He thinks the prison system implanted a listening device in his teeth and knows what he's going to do before he does it. He's all wrapped up in this delusion that the prison system wants to 'rub him out' for trying to convert these heathens and preach the gospel."'

But the Texas Attorney General's Office said in court papers that Panetti knows that he killed his inlaws while his wife and child looked on and that he was sentenced to die for that crime.

The U.S. Supreme Court, 6-3, has allowed Texas' new voter ID law to go into effect for next month's elections, The Huffington Post reports. In dissent, Justice Ruth Bader Ginsburg said the law could impose "'an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.'"

U.S. District Judge Nelva Gonzalez Ramos found that the law was enacted with a racially discriminatory purpose, HuffPo also reports.

The majority's order was unsigned.

The Texas Board of Pardons and Paroles voted last week not to recommend a posthumous pardon for Cameron Todd Willingham, who was put to death after being convicted of killing his daughters in a housefire, the Texas Tribune reports. The Innocence Project argued new evidence showed the prosecutor who convicted Willingham might have made a deal with a jailhouse informant who testified against Willingham, even though the informant testified he received nothing in exchange for his testimony, the Tribune also reports.

A federal judge has issued a preliminary injunction of Texas' state constitutional ban on same-sex marriage, the Associated Press reports.

It appears that Judge Orlando Garcia may have applied the lowest level of constitutional scrutiny, rational basis, in reaching the decison. According to the AP, Garcia opined: "'Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. These Texas laws deny plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex.'"

That means that Garcia didn't even have to find that being LGBT is a classification that would trigger a higher, more protective standard of review.

The cause of same-sex marriage and LGBT  rights advanced in several states around the country this week:

* The Idaho Supreme Court will now allow the adoption of a same-sex partner's children, The Washington Post's Eugene Volokh writes: "More broadly, the court concludes that such a second-parent adoption doesn’t require that the parties be married to each other, so that adoption of an opposite-sex partner’s (or even friend’s) children would be allowed as well, so long as the other requirements for adoption are met."

* Nevada has withdrawn its appeal to uphold that state's same-sex marriage ban, Bloomberg reports: "Nevada was defending a constitutional ban on same-sex marriages established by a voter-approved amendment. A federal judge in 2012 ruled that the state law didn’t violate the equal protection rights of eight same-sex couples that sued to overturn it. Yesterday, the state dropped its defense of the ban in the U.S. Court of Appeals in San Francisco" due to the 9th Circuit's ruling that heightened constitutional scrutiny would not allow a gay man to be excluded from a trial involving an AIDS drug.

* Same-sex couples have filed a lawsuit to challenge Texas' same-sex marriage ban, Reuters reports.

* Same-sex couples have filed a lawsuit to challenge Ohio's ban on allowing both same-sex partners on children's birth certificates, the Associated Press reports. A similar Ohio lawsuit over death certificates had success, and the attorney prosecuting the cases says his tactics "will give the U.S. Supreme Court a wider variety of legal arguments to consider when appeals from various states reach their chambers."

The Texas Supreme Court took up two cases this week on whether injunctions in defamation cases are constitutional: "Treading the gray area between freedom of speech and permissible government censorship, the Texas Supreme Court heard arguments in two cases Thursday that could determine whether state judges may permanently ban people from repeating information found to be false and defamatory," the Austin American-Statesman reports.

I reviewed the oral arguments, and one issue that came up is whether there is a constitutional right to defamatory speech under the Texas Constitution. One of the proponents for the constitutionality of post-judgment injunctions banning someone from repeating false and defamatory statements said that defamatory speech has no constitutional protection. But his opponent argued the Texas Constitution provides more protection than the U.S. Constitution for freedom of speech and that defamatory speech does have constitutional protection in Texas. If there is constitutional protection under state constitutional law , then a post-judgment injunction would be illegal and damages would be the only remedy for the parties who were defamed.