The Texas Justice League
Editorial: John Whitmire, Rodney Ellis and Ruth Jones McClendon led the charge for far-reaching criminal justice reforms
These are heady days for conservatives in the Texas Legislature. Tea party victories and a steady trend favoring conservative causes seem to have tilted the state Capitol further to the right than ever before. Why, then, are so many Republican legislators rushing to support what is typically regarded as a liberal cause — criminal justice reform?
There are lots of reasons, but probably the top one is a commonly shared sense of fairness. No one likes to see innocent people railroaded into prison. And through the years far too many Texans have been content to let such injustices go unchallenged, even when an innocent man was sitting on death row.
Three state legislators — Houston Sens. Rodney Ellis and John Whitmire, and Rep. Ruth Jones McClendon of San Antonio — decided the state needed a wake-up call, because a miscarriage of justice is no justice at all. This year, building on momentum from previous sessions, they rallied some of the staunchest conservatives in the House and Senate to their cause of fixing the justice system to reduce injustices and curtail the prison-industrial complex.
Perhaps most remarkable: These three are Democrats.
Through sheer force of will and the persuasive power of their cause, they rallied the Republican majority to their mission. It required remarkable grit for them to persevere amid increasingly harsh partisan divisions, particularly with a tea party stalwart in the lieutenant governor’s seat and an equally devout conservative in the governor’s office.
They worked together — and with allies on both sides of the partisan fence — to accomplish landmark legislation against overwhelming political odds, fomenting change that continues to resonate across the United States.
For their uncommon impact, McClendon, Ellis and Whitmire are our Dallas Morning News 2015 Texans of the Year.
• Among at least a half-dozen measures to which their names are attached are reforms that:
• Established a commission to review exoneration cases and dissect how innocent people get sent to prison.
• Changed grand jury procedures so prosecutors wouldn’t have such an unfair advantage over poor defendants.
• Established a convicted prisoner’s right to DNA testing in cases where evidence is likely to contain biological material.
Eased criminal proceedings for misdemeanor offenses committed by children, effectively altering the cradle-to-prison pipeline that helps to keep the Texas prison system constantly full.
To get an idea of the hurdles these three have faced in the Legislature, we contacted various lawmakers and behind-the-scenes political players. They uniformly described a strong reluctance among rank-and-file Republicans to embrace criminal justice reform. Swaying these skeptics didn’t come easily. McClendon, Ellis and Whitmire strategized, triangulated and found ways to win hearts and minds without asking anyone to compromise on core beliefs.
Ellis’ alliance with a famed defense attorney
During the O.J. Simpson murder trial in 1995, Barry Scheck acquired national fame with his devastating challenge to the flawed DNA-collection methods of Los Angeles police. Like it or not, Simpson’s not-guilty verdict was a testament to the difference a great defense lawyer can make.
Ellis’ problem in Texas was the opposite of great lawyering. When extremely low-quality attorneys are all that’s available to society’s most vulnerable defendants — those on the edges of poverty — the chances increase dramatically that prosecutors will steamroll defendants into conviction. That’s how innocent people wind up in prison, wondering what hit them. It’s happened at least 237 times in Texas.
In 2000, Ellis drew Scheck’s attention because of the senator’s deft maneuvering to delay a Texas prisoner’s execution. Then-Gov. George W. Bush was off campaigning for the presidency. Lt. Gov. Rick Perry was out of the country. That left Ellis, serving as the lieutenant governor pro tem, as the acting governor with the power to grant temporary reprieves.
A DNA test was the last hope for death-row convict Ricky McGinn to avoid execution. Ellis phoned Bush to consult, then granted a 30-day delay for the DNA test. The results wound up confirming McGinn’s guilt, and he was ultimately executed. But more important for Ellis was setting a precedent so that death-row convicts could gain easier access to potentially exculpatory DNA evidence — access that was further codified into law in 2015 through Ellis’ leadership as part of a years-long legislative effort.
“From then on, we’ve worked together,” Scheck said of Ellis’ maneuver in the McGinn case. The senator now serves as national board chairman of the Innocence Project, which Scheck co-founded with law partner Peter Neufeld.
Ellis says Scheck has been the legal brains behind many of the measures the senator introduced to level the playing field between prosecutor and defendant. But the job fell solely to Ellis to coax his conservative colleagues into supporting what they jokingly label his “hug-a-thug” bills. One such bill this year was a team effort, along with McClendon and Whitmire, to win the establishment of a commission to examine why so many innocent people have been sent to prison in Texas.
Texas leads the nation in exonerations, including numerous murder convictions with the potential for a death-penalty sentence. Always looming under such circumstances is the specter of an innocent person being executed.
Ellis knew that he had to approach his conservative colleagues with extreme caution. If anything in his approach smacked of an effort to ban the death penalty, he knew defeat of the review commission bill would come swiftly.
Ellis said he constantly had to remind his Senate colleagues that he’s not against the death penalty. As governor pro tem, Ellis notes, he has given the go-ahead for three executions.
“I don’t want anybody to be able to pigeonhole me and not listen to my arguments on criminal justice reforms by dismissing me and saying: ‘You’re just against the death penalty,’” Ellis said. “It has stopped the argument against listening to me when I say I’m the only person on this floor who, three times, has said, ‘The state will proceed with an execution.’”
The measures he championed this year — and in previous legislative sessions — have targeted every major facet of flawed criminal justice, from prosecutors’ reliance on junk science (such as bite-mark evidence) and flawed eyewitness testimony, to holding overzealous prosecutors accountable and improving public-defender funding so indigents can’t be railroaded into prison.
He credits teamwork, especially with Whitmire, for much of what he has accomplished. Their senses of humor are legendary in the Senate. No one works a room the way they do.
“Our personalities are very much in sync,” Ellis says. “We work hard, we play hard, and we try to get along with people.”
Whitmire’s bona fides on criminal justice
John Whitmire is dean of the Texas Senate. When he takes the floor, he commands attention. Maybe it’s his shaved head.
After assuming the state’s No. 2 office this year, Lt. Gov. Dan Patrick took a lot of heat from fellow conservatives for wasting his appointment powers to name Whitmire — a Democrat — to chair the powerful Senate Criminal Justice Committee. But Patrick never hesitated.
In fact, Patrick doubled down, naming Whitmire to lead a Senate panel looking into jail safety issues after the August death of Sandra Bland, whose videotaped manhandling by a state trooper drew nationwide condemnation.
Whitmire uses a quick story to convince skeptics that he’s no softy on criminal justice issues. In 1992, Whitmire, his wife and 9-year-old daughter were confronted in their garage by a masked gunman.
“I had to beg an armed robber not to shoot us,” Whitmire recalled. “I never have to take a back seat to anybody that was tougher on crime than me because I’ve been there and experienced the horror. … It’s something you never really get over.”
“I’m kind of recognized as tough, and have always been,” Whitmire says of his Senate reputation. His colleagues wouldn’t take him seriously otherwise, he adds. “I couldn’t survive [politically] — plus, that’s my real belief. I think violent offenders ought to be kept confined for long periods of time. But if you’re going to have the resources to keep rapists and child molesters locked up for long periods of time, you can’t waste money on the nonviolent people.”
To couch the reform argument in ways his conservative colleagues can embrace, Whitmire dispenses with the heartstrings approach and instead appeals to their sense of economic logic: Why continue building expensive prisons that require more and more felony convictions to justify their existence?
Whitmire says that’s at the heart of what he terms the prison-industrial complex — a system designed by contractors who profit off building and servicing prisons and keeping them full. Does Texas really need to keep filling prisons with drug users and the mentally ill, Whitmire asks, when it’s far cheaper to put them into treatment programs?
Picking his fight over ‘pick-a-pal’ grand juries
Whitmire’s home city, Houston, became the focal point last year of a statewide controversy over the antiquated “pick-a-pal” grand jury selection system, by which some judges would handpick the people serving on grand juries instead of selecting jurors at random.
A handpicked system typically involved a judge choosing acquaintances or associates. Such juries had a far greater chance of being loaded with like-minded individuals with preconceived notions of guilt or innocence. They also had a higher probability of being skewed along racial lines, as Houston Chronicle columnist Lisa Falkenberg explored last year in a Pulitzer Prize-winning series of columns.
Pick-a-pal “had really become a volatile issue,” Whitmire said. He made it his mission in 2015 to reverse the good-ol’-boy way of doing things.
He describes that victory as his single most important achievement of the 2015 session, though he’s also proud of having persuaded his colleagues to decriminalize truancy in large urban public school districts. That measure led to hundreds of thousands of juvenile criminal records being expunged, and it rolled back the stiff $500 court fines that have overly penalized poorer families.
Cal Jillson, a Southern Methodist University political scientist who closely follows state politics, praises Whitmire’s tactic of using the prison cost-savings argument to win over his conservative colleagues. Recent drops in urban crime rates have made it harder than ever for fiscal hawks to justify such heavy expenditures.
“It’s not as though Texas had an epiphany,” Jillson said. Whitmire simply recognized an opening and exploited it.
McClendon’s battle within the battle
McClendon took on her reform challenge in the House at the same time she was fighting lung cancer. Treatment involved weeks of debilitating radiation and chemotherapy. By the end of the session, she had had trouble speaking and was barely able to walk. She powered through.
McClendon began circulating a tandem bill with Ellis in 2013 to establish the exoneration review commission. She wanted the commission named after Timothy Cole, a military veteran and Texas Tech student whose case in the rape of Tech sophomore Michele Mallin was ramrodded through the justice system.
Mallin’s eyewitness identification of Cole sealed the deal for his conviction. There was only one problem: She was wrong, and DNA evidence ultimately proved it. While serving a 25-year prison sentence, Cole, 39, had a massive asthma attack. He died in prison in 1999 an innocent man.
McClendon and Ellis vowed to redress what they regarded as a supreme injustice.
The Tim Cole Exoneration Review Commission was designed to serve a legislative purpose on wrongful convictions equivalent to what the National Transportation Safety Board does on big accidents, Ellis explained. In other words: Go in, study what went wrong and make recommendations to help ensure it doesn’t happen again.
Opponents quickly began circulating talking points to defeat McClendon’s bill. This unelected commission, they asserted, would have authority to tell the judiciary how to do its job. Nothing less than a backdoor attempt to outlaw the death penalty, they charged. In 2013, Rep. Jeff Leach, a youthful-looking, conservative freshman representative from Plano, recognized that problems were brewing and offered to help McClendon with her bill.
“I had so many Republicans who were against me, maybe he felt sorry for me,” she recalled with a laugh.
Leach said he needed no persuading to support her cause. “I’m very passionately and proudly pro-life. This is a pro-life issue for me. There’s no bigger government than a government that robs your freedom for a crime you didn’t commit,” he explained.
Ellis and Whitmire had their hands full winning approval in the Senate. But Leach and McClendon knew the real challenge would come in the House, where a 2-to-1 Republican majority ruled and disparate political interests were at play. The opposition wasn’t going to make it easy, Leach said.
As it turned out, the unexpected drama came in a Senate committee meeting.
A Senate collision nearly derails the effort
A lone senator, Republican Joan Huffman of Houston, proved to be the biggest hurdle, starting in the 2013 session. The exoneration-review commission bill was before the Senate Judiciary Committee, which Whitmire chaired. Huffman was vice chair, and she had made no secret of her skepticism.
Huffman and Whitmire have a long history together. She was the chief felony prosecutor for the Harris County district attorney’s office at the time of Whitmire’s encounter with the gunman in his garage.
Disaster struck when Tim Cole’s brother, Cory Session, testified before the Criminal Justice Committee in 2013. Whitmire had been called away from the room, leaving Huffman in charge. She openly expressed misgivings about the commission, prompting an angry outburst from Session. He told Huffman to go find another job. Storming out of the hearing room, Session audibly muttered the word “bitch.”
“I just thought her demeanor and her tone were deplorable,” he told us. “She harpooned that piece of legislation.”
Whitmire returned to the hearing room, astonished at how quickly things had disintegrated. He tried to smooth over the rift with his colleague, but to no avail.
McClendon decided to go for the jugular. She placed point-of-order objections on a slew of Huffman’s Senate bills pending before the House. The parliamentary maneuver effectively stopped Huffman’s bills cold.
“Oh, it got personal,” Ellis recalled. “It was tense.”
Ellis and McClendon knew the effort was dead for 2013, but they didn’t give up. Neither did Cory Session. Last year, when a monument to Cole was unveiled in Lubbock, Session made sure the state’s highest-profile Republicans were present — then-Sen. Dan Patrick, Attorney General Greg Abbott and Gov. Rick Perry. Session said he meant their presence to serve as a direct signal to Huffman.
When hearings were assigned to committees this year, the exoneration review commission bill went not to Whitmire’s Criminal Justice Committee but rather to the State Affairs Committee, which Huffman chaired. It meant Session and his family members would have to appear before Huffman.
Session prudently kept his mouth shut and let his relatives speak. Huffman did not stand in the way. After Ellis quietly negotiated some modifications to ensure GOP support, the bill sailed through — with Huffman joining in the unanimous vote for approval.
Conservatives transformed from skeptics to champions, Session said, after hearing stories like Cole’s, about “people trying to pursue the American dream, but it turns into the American nightmare.”
On the House side this session, McClendon and Leach wound up mustering an overwhelming vote: 138 yeas and only five nays. The lopsided numbers disguise the amount of effort that went into it, McClendon said.
“We had Republicans standing in our way, but we also had Republicans who understood what Timothy Cole was all about,” McClendon said.
Members were moved to tears when McClendon, weakened by her cancer treatment, took the floor to address the full House after the bill won final approval. Virtually the entire membership huddled around to cheer this final legislative victory before her retirement.
“My colleagues were all so wonderful,” McClendon said. But what was going on? Republicans and Democrats just don’t huddle up and cheer together like that, she thought. It was like the House had been taken over by space aliens. “I’m sitting there trying to figure out: Where did they all come from?”
Ellis jokes about how badly he underestimated McClendon’s cross-party appeal. “We probably should’ve gotten her to carry more bills this session,” he said.
SMU’s Jillson credits Whitmire, Ellis and McClendon for shrewdness in working the political system to their advantage despite the odds and recognizing that the moment was ripe for change.
Scheck says the three proved themselves adept at zeroing in on tea party outrage over the damage that big government can do. The legislative record speaks to their achievements in turning Texas around.
“I have a national perspective on this,” Scheck says. “Texas has found a lot of solutions,” in large part because of the groundbreaking work Ellis, McClendon and Whitmire, among others, have accomplished.
“And now,” he adds, “this is a national trend.”