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.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.
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.
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.