Monday, March 01, 2010

Timothy Cole pardon recommended: How many more false convictions are out there?

The Texas Board of Pardons and Parole has recommended a pardon for Timothy Cole, who died in prison of an asthma attack before DNA could prove he was innocent of the rape for which he was falsely convicted. Reports the Fort Worth Star-Telegram:

It would be the state's first posthumous pardon, and [Governor Rick] Perry has indicated that he would sign an order clearing Cole's name if recommended by the board.

"Gov. Perry looks forward to pardoning Tim Cole pending the receipt of a positive recommendation from the Board of Pardons and Paroles," Perry spokeswoman Allison Castle wrote in an e-mail to The Associated Press on Saturday.

Cory Session, who has been fighting to clear his brother's name for years, said he anticipates that the governor will sign Cole's pardon in March during a ceremony in Fort Worth.

"To say that the wheels of justice turn slowly would be an understatement," Session said Saturday.

"The question is: How many more Tim Coles are out there?"

Excellent question, Cory. Keep asking it!

In partial response to Session's query, Dave Mann at the Texas Observer published a column last week titled "Who gets wrongly convicted and why?," in which he broke down the causes of wrongful convictions among the first 250 DNA exonerations in the United States. (Timothy Cole is not on that list of 250 because his pardon hasn't been finally approved, but he'll be added to it soon.)

In many cases, Mann points out, more than one single error contributed to the erroneous outcome. For example, 78% of cases involved faulty eyewitness identification, but in 38% of cases, two or more witnesses made false identifications that DNA later disproved. Just over half of cases - obviously including many with faulty eyewitnesses - also included forensic errors, and just over a quarter involved false confessions.

Remarkably, seventeen DNA exonerees were released from death row, leading Mann to suggest:

That’s 17 innocent people who would have been executed had DNA testing not cleared them. You have to assume there's been an innocent person somewhere who wasn’t lucky enough to have testable DNA in their case and was wrongly executed in this country—quite possibly in Texas and quite possibly Cameron Todd Willingham.
That's an excellent point about those innocent prisoners "lucky enough to have testable DNA in their case." For a variety of reasons, DNA evidence is usually unavailable. Biological evidence only exists in 10% or less of violent crime cases, meaning that DNA would be unavailable clear innocents in the other 90% of death row inmates and others convicted of violent crimes. It seems nearly inconceivable that the error rate for the other 90% would be any lower than that for those where police happened to collect DNA at the crime scene.

Further expanding the possible number of additional, unidentified innocent prisoners out there, even when biological evidence was gathered, most jurisdictions did not keep DNA from older cases and the lion's share of exonerations (certainly in Texas) come from before DNA testing was widely available.

Even more frustrating, when jurisdictions do find batches of old evidence - as in Bexar County where the San Antonio PD found more than 5,000 untested rape kits languishing in storage - they frequently choose to test only for guilt, but do nothing to identify possible innocence cases. In Dallas, after his predecessor fought DNA testing tooth and nail, District Attorney Craig Watkins famously partnered with the Innocence Project of Texas to vet old cases after they found a similar DNA cache, a move which has afforded him national acclaim. But in Bexar County, DA Susan Reed has so far refused to follow his lead.

To honor the memory of Timothy Cole and the other 250 DNA exonerees - who Mann notes collectively spent 3,160 years in prison for crimes they didn't commit - Reed should insist on vetting cases with recently discovered DNA evidence to search for the innocent as well as the guilty. So far, the San Antonio Police Department is going through the cases looking only for evidence in unsolved stranger rapes. But if prosecutors do the work, they'll have an obligation which the police do not to turn over potentially exculpatory evidence to the defense. That's why the DA, not the cops, should take the lead.

Though Reed is a Republican and Watkins a Democrat, this is not a partisan issue in any way, shape or form. (That said, if the DA remains recalcitrant, she has a Democratic challenger in the fall so I suppose it could become one.) Instead, it's a question of whether the DA will abide by the fundamental tenet of her office: To seek justice, not just convictions. Timothy Cole's memory, much less the sacrifice of thousands of years by those 250 innocent men, demands that the justice system take responsibility for its errors and not sweep them under the rug.


Anonymous said...

Sorry to seem dense but I don't understand. In Dallas, Craig Watkins indentifed cases in which there was untested DNA in the case where a defendant had been convicted. Testing the DNA proved that the defendant was wrongfully convicted. In contrast, in San Antonio, SAPD has DNA in cases in which it is alleged a crime was committed. The DNA is of the actual perpetrator of the crime. If you test all of the kits, the DNA results will link someone to a crime. How is it going to exonerate anyone? I am just trying to understand, not criticize.

Gritsforbreakfast said...

In some cases, the wrong person may have been convicted, as was the case with the exonerees in Dallas.

If the convicted person's DNA doesn't match that from the rape kit, it could then exonerate them depending on the fact circumstances of the case. Make sense?

Anonymous said...

How would DNA testing have helped Willingham?

Anonymous said...


I am the one who posted the first comment. You have it wrong. Your answer assumes that there is DNA that is untested in a particular case, which is what happened in Dallas. In San Antonio, the kits are from either unsolved cases, cases where the victim refused to prosecute, or where the suspect was known to the police because he confessed or claimed it was consensual. San Antonio does not have a situation where someone is convicted and claiming that DNA was not tested. That is why I did not understand the connection you are trying to make. Testing the kits in San Antonio will only link the defendant to a crime. I don't see how it is going to exonerate anyone.

Gritsforbreakfast said...

9:44, according to the news accounts, that's not correct. You say they're not testing "where the suspect was known to the police because he confessed or claimed it was consensual," but that's an incomplete statement. There are also untested rape kits from convictions where the defendant was identified by the victim or other eyewitness and a conviction secured based on that evidence. Those are the cases where innocence claims may possibly arise. But SAPD is assuming that if they got a conviction by other means, there's no reason to revisit the evidence.

In Dallas, no one KNEW to claim that there was untested DNA that could affect case outcomes until they vetted the cases looking for it, and that has not happened in San Antonio. Indeed, to my knowledge they haven't even notified defendants there is new evidence in their cases, because the police department is handling it instead of the DA and they don't have a Brady obligation to hand over potentially exculpatory material.

Gritsforbreakfast said...

To 4:46, DNA testing wouldn't have helped Willingham - that was the point of the discussion about DNA not being available in most cases.

Paul UK said...

Well it looks as though history has been made

Anonymous said...
"It transpired the man had confessed earlier. He had sent letters to court officials four years before Mr Cole died - but the admission was never followed up."

This is a dishonorable act of state employee!

The Justice Project said...

See what Edwin Colfax at The Justice Project has to say about Tim Cole's exoneration and the need to honor Cole's memory and experience.