Sunday, May 23, 2010

Non-DNA cases the future of innocence in Dallas, but Bexar stuck in the past

Now that the Dallas DA's conviction Integrity Unit has mostly vetted the old DNA samples, they're starting to look through possible innocence cases in cases without DNA, which are much more numerous but also harder to definitively prove. Here's how the story in the Dallas News by Jennifer Emily opens ("Dallas County district attorney's conviction integrity unit to focus on non-DNA cases," May 23):
It's been almost a year since the last DNA exoneree walked out of a Dallas County courtroom and into the world as a free man.

The flood of exonerations in Dallas County, where since 2001 more wrongfully convicted people have been freed through DNA testing than anywhere else in the nation, is slowing to a trickle. There are only so many cases where genetic evidence is available to test.

But the work is far from over.

The emphasis of the conviction integrity unit established by District Attorney Craig Watkins in 2007 is shifting toward challenging cases where there is no DNA to test, but where questions remain about an inmate's guilt or innocence.

Without DNA evidence, these cases require more time and can mean investigating a crime that occurred years ago as though it just happened: tracking down witnesses, comparing fingerprints to see if there is a match when one didn't exist before, seeking new evidence.

Watkins says he hopes his office can use lessons learned during years of DNA testing to improve police work. Bad witness identification, for example, has been a factor in most of Dallas' DNA exonerations. There are also several cases where prosecutors or police withheld evidence that could have prevented a conviction.

Watkins said his perspective has changed since the unit began. He's realized that it can do much more than free the innocent.

"At the time, I started out looking at legitimate claims of innocence, and obviously we still do," said Watkins. "But now, it's how can we improve prosecutor and police techniques. It's about the ability to argue for changes in the law."

This is the future of overturning wrongful convictions in Dallas County.
Really, this is the future of the innocence movement generally, certainly in Texas. For the next few years there will continue to be limits on the number of DNA exonerations for several reasons.

For starters, many convictions where DNA testing was never done happened long ago, but sentences are so long that often offenders are still locked up or on parole. Meanwhile, frequently old evidence has been long-ago been destroyed. One notable exception is a cache of 5,000 old rape kits recently discovered that were unknowingly retained by the San Antonio PD - a circumstance that's essentially similar to what happened in Dallas where a private lab happened to have kept old biological samples from several decades past. In Bexar County, though, DA Susan Reed and the police chief have said they'll only pursue DNA testing where it might prove guilt in an unsolved case. They've so far refused to rexamine old cases - as the Dallas DA did, partnering with the Innocence Project of Texas - to make sure this evidence exonerates the innocent as well as convict the guilty. (Reed has a Democratic opponent and if I had my druthers he'd make establishing a Conviction Integrity Unit a central campaign issue and hammer her on this decision.)

More broadly, biological evidence only exists in 10% or less of violent crimes, so 90% of convictions for violent offenses will never be implicated by DNA testing at all. In many more cases, DNA evidence alone isn't dispositive (e.g., a crime scene in a defendant's home would likely have their DNA there whether or not they committed the offense). The same flawed policing techniques, however - overreliance on faulty eyewitness lineups, pseudoscientific forensics, false confessions, lying informants - are used in both types of cases. There's no reason to believe the rate of proven false convictions wouldn't be 10x higher if there were a way to discover those cases with the same level of certainty as with DNA evidence.

The next big area for exonerations will be convictions based on flawed forensics. Convictions based on pseudoscientific arson experts, dog-scent lineups, and other non-scientific forensics deserve to be revisited comprehensively, following the model of Dallas' Conviction Integrity Unit.

The article also give some raw data that contributes to our understanding of the overall rate of false convictions. In all, 1.4% of cases examined resulted in exonerations, which falls squarely within the range of estimates from other sources. Writes Emily:

Of the 502 cases the Dallas County DA's office decided to examine for potential DNA testing, prosecutors tested and have the results for 50 cases. Many of those requests had been denied by the previous district attorney, Bill Hill.

So far, seven men have been exonerated through those tests and guilt has been confirmed for 28 inmates, Ware said. The remaining tests were inconclusive. Some could end up being investigated further, but others do not have other evidence to pursue.

Six cases are in testing and the conviction integrity unit is gathering DNA swabs for another half dozen.

The more than 400 cases the DA's office didn't test either had no genetic evidence or the DNA would not have proved guilt or innocence.

DNA could also be tested in a couple of cases where the inmate died. "They're not at the front of the list," Ware said. "But we're not going to rule it out."

Earlier this year, Gov. Rick Perry posthumously pardoned a Fort Worth man, Timothy Cole, after DNA showed he was wrongly convicted of a rape in Lubbock.

That 1.4% number falls squarely within the range of estimates seen previously for the rate of false convictions. Josh Marquis, a DA from Oregon once cited on the subject by Antonin Scalia from the bench, has given the lowest number I've seen: He's settled on an estimate that innocents are convicted .75% of the time. Nationally, 2.3% of defendants sentenced to death row were later exonerated; in Texas that number is 1.5%. Overall, exonerations made up 3.3% of the first thousand cases solved in Texas by DNA. (I've also argued that focusing exclusively on DNA exonerees understates innocence figures by excluding false drug war convictions; e.g., IMO the number of "innocence" cases in Dallas should include all the victims from the fake drug scandal.)

The Dallas DA's Conviction Integrity Unit number may be the best little study on this subject I've seen yet, even if it's an inadvertent one. A random cache of DNA samples are found, 502 are examined (a large enough sample for statistical validity), and 1.4% result in exonerations. If Bexar County found sustainable actual innocence claims at the same rate among the much larger batch of DNA they discovered, San Antonio conceivably might see dozens of DNA exonerations.

For that matter, if the false conviction rate overall turns out to be 1.4%, that would mean more than 2,100 actually innocent people are presently locked up in TDCJ.

UPDATE: I'd forwarded this post to Mike Ware at the Dallas DA's Conviction Integrity Unit, and he replied thusly:

Scott, read your blog on dmn article on our work in the ciu on non-dna cases and, as always appreciate your interest in and support of our work. One thing that I think you should be cautious about is taking our raw numbers and using them to quantify the rate of wrongful convictions. For example, many of the exonerees had more than one case (one for example had eleven) so I think even using your methodology the rate of wrongful convictions would be higher. But it is a complicated issue, and I would be cautious of attempts to simplify it in order to quantify it, not that it can't be done.

That's a good point. In particular, there were exonerations under the previous DA Bill Hill that came from the same DNA cache, so the 1.4% number is definitely low. Those analyzed by the Conviction Integrity Unit mainly represent cases where Watkins' predecessor had successfully opposed DNA testing before he got in office and the Democrat reversed his decision.

24 comments:

Anonymous said...

This is good. Several years ago, Senator Jane Nelson was successful in getting the CPS Reform bill passed (2005?) Big story in DMN then about false accusations.It was stated false accusations had the CPS loaded down. A penalty was placed in this bill about false accusations, but we all know there are lots of these which are done for child custody leverage in divorces or simply someone got mad at another person. She covered that in her story. The problem is there have been no indictments in this law, that anyone has heard of. Are the Judges, lawyers and DA's aware of this law?

Anonymous said...

So the prosecution gets it right 98.6 percent of the time, Grits? Can you name any other governmental service which boasts a comparable success rate? I wonder if there's any other criminal justice system in the world that gets it right so often. Hell, Grits, you could make millions in the big leagues if you can hit the ball 3 out of 10 times. Kudos to DA Reed for not wasting the taxpayers resources on such a pointless effort. Personally, I'd rather see my tax money go to help the TRULY innocent--like people who don't have health insurance or abused kids who've been removed from their homes.

Gritsforbreakfast said...

@5:55: What's the difference between the "truly innocent" and someone convicted of a crime they didn't commit?

As for giving kudos to DA Reed for choosing to leave dozens of innocent people in prison because she won't look at evidence in her possession, most people might think that contradicts her oath to seek justice, not convictions.

If the idea of punishing innocent people just isn't a problem for you, I'm not sure why you're here reading this blog in the first place.

Anonymous said...

Grits, my guess is that out of that 1.4 percent who were convicted of something that they really didn't do, it wasn't entirely happenstance that thet wound up in trouble to begin with. Most likely, they were guilty of something else and just hadn't got caught, or they at least made poor choices about their lifestyle that caused them to be suspected in the first place. I read your blog because occasionally I agree with you--e.g. that stupid DWI surcharge. But for the most part I'm very satisfied with the criminal justice system in Texas. I don't agree that the system is corrupt or broken. Nor do I believe that most police or prosecutors conduct themselves unprofessionally or unethically. I'm quite content with 98.4. To get to 100 percent will require a financial sacrifice that I just don't think this society can financiallyafford to make in today's economic climate. I also read your blog because it's amusing and funny to see some of your liberal readers get all worked into a lather over issues that most right thinking Texans couldn't care less about. Sometimes you remind me of that Ronald Reagan quote: "It isn't that Liberals are ignorant. It's that they know so much that isn't so."

Gritsforbreakfast said...

7:03 thinks "Most likely, they were guilty of something else and just hadn't got caught"

If you're not too cowardly to attach your name to your opinions instead of hiding behind anonymity, I'll be happy to introduce you to Timothy Cole's mother and you can explain to her how her son, a veteran and Texas Tech student, deserved to die in prison serving a sentence for a rape he didn't commit. But hey, why does he matter, right?

CharityLee said...

@5:55

Pray you never find yourself in need of a DNA test. And before you say "never" maybe you should do a little research into those who have been exonerated by DNA evidence and were law abiding citizens to begin with.

If you really want your money to go to those without heath insurance then you should have no problem with your tax dollars helping to fund the medical care of prisoners, who most likely had no health care before they ever committed a crime. It's a win-win for you and the prisoner!

Before start using your real name please allow me to suggest you think things through a bit more logically and base your comment on fact rather than "I don't agree that the system is corrupt or broken. Nor do I believe that most police or prosecutors conduct themselves unprofessionally or unethically."

There is overwhelming proof, based on fact, that both of those statements are just wrong. If you have been reading Grits, it does not show.

Try not to confuse right thinking for "right" thinking. Your way of thinking is called right because of where you land on the idealogical spectrum, not, in fact, because you are right.

TDCJ EX said...

I agree Grits The troll is far to cowardly to attach his name to his rant and seems to have little problem with innocent people being in prison or they must have been guilty of something . Not only would I like him to meet Timothy Coles family but I would like him to say that to many people who have been falsely convicted . I doubt he has the courage to face them . I doubt he has the courage to tell them that it was no big deal they went to prison for something they did not do . He is concerned about the financial cost of getting it right 100 % of the time ! What about the costs of getting it wrong . They are incalculable ! He has to be one of the most heart less coldblooded humans walking and a deeply troubled one at that . Perhaps that is why he hides behind the word anonymous .I he is going to make such statements he should have the courage to put his real name with them..I happen to know a few who are innocent some free some who are still incarcerated and fighting for their freedom

I doubt he knows exactly what prison is and what it does to any one . He obviously does not know just how corrupt a cops and prosecutors are or he is willfully ignorant .

They really do need a history lesson there is a reason why we have the bill of rights and thought history there are examples of what happens when we give the state the kind of power this troll is willing to give it .

To be blunt this coward views humans as expandable and those in prison are beyond redemption a improbable statement . I would like to see him accused and convicted of a capitol crime sent to Polunsky to live alone in a cell 23/7 Then in about 10 years of torment be brought to the walls to his demise at 6 pm I have a feeling those people will matter . Sadly that seems to be the only way people like him learn

I would like him to know the pain I endure every day due to his mentality. I would like him to meet some families I know and tell the their loved ones don't matter they must be guilty of something .

I would like him to sit in the defendants chair and hear lie after lie told about him and be able to do nothing about it . Those humans matter ot me .
Infact each peron inporsin wether i like them or not and even if they should neverv see freedom matter .

How about this qoute

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Benjamin Franklin

I leave the coward with this quote by

In Germany they first came for the Communists,
and I didn't speak up because I wasn't a Communist.

Then they came for the Jews,
and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics,
and I didn't speak up because I was a Protestant.

Then they came for me —
and by that time no one was left to speak up.

CharityLee said...

And I forgot--Reed is a fascist.

Anonymous said...

What are the odds that "Anonymous 5:55 and Anonymous 7:03" are the one and only Williamson County's District Attorney John Bradley? These two comments seem in line with Bradley's handling of the Michael Morton case and his behavior as the Chairman of the Forensics Science Commission.

I recently ran across a short John Bradley "Biography"(autobiography most likely) that stated: "He also loves Apple computers and spends way too much time posting comments in legal discussions on the internet." google "Punishment Evidence by John Bradley" (pdf)see page 3.

Just for fun another good one: search "Pleas John Bradley District Attorney Williamson County" (pdf) Page 3 & 4 read like a resume. I hope so. And, I pray Bradley is looking for employment outside of Texas.

Gritsforbreakfast said...

You know, upon further reflection, if prosecutors think a 1.4% error rate is okay, perhaps they should be required to tell that to juries? If that's how they honestly feel then stipulate that they convict the wrong person 14 out of every 1,000 defendants but that doesn't matter because they assume defendant probably did something anyway.

Then the jury can decide: Does a 1.4% chance of error = "reasonable doubt." At this point we'd see every person working in high tech manufacturing thrown off every jury, since in the private sector they shoot for a six sigma error rate and 1.4% is less than four sigmas - a false conviction in one out of every 71 cases. Given the volume business done in Texas courts, that works out to a lot of folks.

Anonymous said...

Grits, I think that's the point. The system assumes some level of imperfection. That's why the standard of proof is "beyond a reasonable doubt" rather than "absolute certainty." The Cole case is a tragedy. But not any more so than parents who lose their children to drunk drivers (MADD). Or children who are abused or murdered. The problem is that every time victim's advocacy groups use one of these anecdotal tragedies as an example of why laws need to be toughened, you belittle their grief and decry their cause is illegitimate. How is that any different from what you're doing here with the Cole case? I'm sure if you wanted to spend an extra billion dollars on criminal justice system improvements, you might be able to push that 98.6% success rate over 99%. But do you think that would be a more prudent expenditure of our tax dollars as opposed to spending it on, maybe, education? I realize promoting controversy about the criminal justice system is your hobby. And that's great. We should constantly be striving for improvement in every profession, be it health care, public transportation, professional athletic competition, etc.. But contrary to the impression that you seek to give people in your writings, the sky is not falling. The "system" gets it right way, WAY more often than it makes mistakes. And I think the vast majority of the people in this state realize it.

Anonymous said...

Her highness Reed, has not and will not EVER admit being wrong. Those who vote for her are voting for her Gestapo mentality! Don't ever get on her S&@T list, you'll regret it. Vote for change, vote LaHood.

Gritsforbreakfast said...

8:34 writes: "The Cole case is a tragedy. But not any more so than parents who lose their children to drunk drivers (MADD)."

The difference is when parents lose their kids to drunk drivers, prosecutors see it as their duty to seek justice. Outside of Dallas under Craig Watkins, that's not typically the case among Texas prosecutors faced with potential false convictions. In those instances we get assholes announcing that the convicted innocent doesn't matter because they were probably guilty of something else anyway. If prosecutors sought justice in false conviction cases as readily as they seek to secure DWI convictions, you might have a more valid point. Instead, in Cole's case the prosecutor blamed the victim(s), just like you're doing here, instead of accepting responsibility when the unwise exercise of their power resulted in tragedy.

As a prosecutor, are you willing to tell every jury there's a one in 71 chance you're accusing an innocent person, but that level of certainty should be good enough? What do you suppose revealing that data might to to your conviction rate?

Alan Bean said...

Scott: Thank you for this excellent summary of DNA and non-DNA exonerations. When we talk about an exoneration rate of 1.4%, we aren't saying that only 3 out of 200 defendants convicted of violent crimes have been wrongfully convicted; we're saying that 3 out of 200 can prove they were wrongfully convicted. As you say, DNA isn't dispositive in 90% of these cases so the guilt-innocence issue can't be resolved . . . at least by DNA.

Most homicides are never solved because the perpetrators didn't leave behind enough evidence. When prosecutors are able to name a suspect, guilt is normally a reasonable certainty with or without DNA. It's the ambiguous cases that fall somewhere between virtual certainty and evidence insufficient to justify an indictment that lead to most wrongful convictions.

The odds of systemic failure rise steeply when the victim is a high-status white person, the alleged perpetator is a low-status black person, the evidence is circumstantial and the jury is either all-white or predominantly white.

In cases that fit this description, prosecutors are tempted to manipulate eyewitness testimony, cut sweetheart deals with inmate snitches, employ junk forensics and ignore evidence inconsistent with their theory of the case.

We will never know the true number of innocent folks sitting in TDCJ prisons, but the 1.4% figure is just scratching the surface. That's why Friends of Justice intervenes in cases at the pre-conviction stage whenever possible.

ckikerintulia said...

If my chances of dying in a crash were 1.4% every time I get on a plane, or take an automobile trip I would think that was unacceptably high. I would have been killed a thousand times by now. I hope these anonymous hard hearts are not really as hard hearted as they seem. If they are, I hope the Catholics are right about purgatory, else they're in for a rough time at the judgment. Come to think of it, purgatory might be a good deal for this ole retired Baptist minister as well!

Anonymous said...

Oh yeah, I know tons of prosecutors who just enjoy the hell out of prosecuting people who they know are innocent. In fact, that's why most of them went to law school to begin with...So they could improve society by prosecuting innocent people.

Grits, there are any number of instances where prosecutors may not be able to know for certain if a particular person is guilty. Lots of these cases boil down to the credibility of witnesses. That's why they make juries. The prosecutor wasn't there when the offense was committed. He didn't see what happened. But ultimately, unless a prosecutor has some reason to disbelieve a witness, then that case needs to go forward a society, as represented by a jury, can make the call. Do witnesses make mistakes? Sure. Do witnesses sometimes lie? You bet. Are co-defendant witnesses or jailhouse snitches inherently unreliable? Of course. And the juries know it. In fact the law builds in certain protections regarding this type of testimony. But not every case is a "slam dunk." Sometimes tough cases have to be tried. You present the evidence the best way you know how. The judge hopefully makes both sides follow the rules. Ideally, the defense attorney does his job. And the jury makes the best decision it can based upon the evidence and the law its given--"beyond a reasonable doubt." If there's a conviction, then you get appeals, and post-conviction writs. In those instances, it's the prosecution's job to represent the state and (absent some obvious error) uphold the conviction and sentence. Is this system foolproof? Hardly. But there aren't many prosecutors who can maintain their sanity if they spend all of their time worrying about the possibilty that a mistake was made. At some point, you just have to realize that you're human. You try to do your best. And you have confidence that the system gets it right 98.6% of the time. You hope the safeguards will prove adequate to catch the innocents who fall through the cracks.

As an aside, I don't know many DA's offices around the state who have the the manpower and resources to continually revisit closed cases for some possibility of error. There are new cases coming into most offices constantly. Criminals don't go on vacation. Victims are wanting to know how long it will be before a case goes to trial. People in jail are frequently demanding a speedy trial. Judges are wanting to move cases on their docket. Along with all the other hustle and bustle of every day life. It's great that Watkins seems to have lots of money and support from his Commissioner's Court in Dallas County to assign prosecutors in his office to work on closed cases. I'd venture to guess that if most other DA's in Texas asked for funding for similar pursuits, their county budget officer would look at them like they'd F'ing lost their mind! They'd hear something like "that's what we pay the defense lawyers to do. We pay you to prosecute, not get people out of prison."

At the end of the day, it's an adversarial system. And if it's working 98.6 percent of the time, I'm pretty proud of that statistic. We're never going to reach that Utopia you seem to want to create where the system is perfect and there are never any mistakes made. There will always be a few Timothy Coles who unfortunately suffer the consequences of imperfection in the system. But I seriously doubt that when Cole was prosecuted so prosecutor woke up that morning and just decided that "hey, I don't have anything better to do today, so I'll just trump up some charges against some innocent person and try to send him to the pen." It just doesn't work that way--except maybe in your mind.

Gritsforbreakfast said...

10:17, Nobody said most prosecutors think "hey, I don't have anything better to do today, so I'll just trump up some charges against some innocent person and try to send him to the pen."

OTOH, when errors are made, that excuse doesn't justify fighting DNA testing, etc., that could prove somebody's innocence.

As for "the manpower and resources to continually revisit closed cases," first you can always solicit help from one of the state's various innocence clinics. Also, nobody said revisit every case, just ones where there's potentially exonerating evidence, e.g., forensic evidence used to convict that's no longer valid - older arson cases, dog-scent lineups, etc..

In the case of the biological evidence found by SAPD, they've taking the time to vet the evidence to look for the handful of cases that might result in additional convictions. To not spend the same effort to make sure innocents weren't convicted IMO violates the DA's oath to seek justice. Sugarcoat or justify it however you like.

Anonymous said...

For those of you, native Texans or not, you live on the other side of the bars for X number of years for something you did not do. And then tell me, DA Reed is "polictically" correct in her decision for not pursuing DNA testing on the possible innocent victims serving time. Money IS NOT a reason for not testing DNA. Lives are priceless as time is priceless. Once gone, you never get it back!

Anonymous said...

So, 12:12, are you offering to pick up the tab on all this DNA testing? Good deal! We'll test every single drop! And then test it again! Thanks!

Thomas R. Griffith said...

It's about damn time that someone addressess all of the non-DNA cases (closed and cleared) alike.

Dallas D. A. Mr Craig Watkins just might be the answer to getting the ball rolling on criminal justice system reforms. I'd like to thank him for doing the right thing and shame those that don't and/or never did. And thanks to all of you that took time to spank the idiots.

Anonymous said...

Anon 5:55 5/23. I have never heard of a baseball player that took away someone's freedom, nor wrongfully imprisoned someone due to their pitching or batting average. And as some have said before, I am absolutely positive that if you were one of the 3% they didn't get right you would sorta hope they would make another pass at you for innocence. I am sure Tim Cole would have liked that second look while he was ALIVE!

So yeah millions earned as a baseball player with a 300 average, but I would hope, as well as the majority of americans, that 97% is low, and that the justice system was shooting for 100% every day they walk in the door.

Gritsforbreakfast said...

@2:35 - In many cases if there's a valid need for testing, outside funding can be found to do it. In Dallas, Craig Watkins got a foundation grant to vet the cases and perform the DNA tests. And the Governor distributes a great deal of federal grant money that could be used for those purposes.

In quite a few cases when you see a DA fighting DNA testing, the defense is offering to pay and it wouldn't cost them a dime. Cost isn't the issue at all, it's avoiding the embarrassment of being proven wrong.

Anonymous said...

The DA needs to look into the case of Darlie Routier, innocent on Texas Death Row. He needs to live by what he said he was going to do and I know if he really looked into the case, he would know she is innocenct. This woman had been incarcerated right at 14 years for a crime she did not commit. How long is it going to take to get this case -re-investigated? What are they afraid of? IF they were wrong (and I know they are) they need to admit it and release her. Man, what is the matter with these people?

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