Thursday, May 10, 2012

Travis DA race: Should we learn lessons from false convictions, or even acknowledge them?

There are many reasons to be cynical about modern elections, but one functional benefit they provide - at least in seriously contested races - is to force incumbents to defend their practices, raise up alternative approaches, and generally provide an opportunity for public debate about the minutiae of a job that normally is never the subject of media coverage nor even public conversation. In that vein, the Austin Chronicle has an interesting back-and-forth interview/comparison with Travis County DA candidates, incumbent Rosemary Lehmberg and challenger former Court of Criminal Appeals and District Judge Charlie Baird. (See the Chron's earlier coverage of the race.) The first item on the Chron's list is of issues "Wrongful Convictions," and here I immediately fall out with the incumbent DA, who announces that:
We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. ... But it was after the two mistaken identification deals ... that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.
Baird argues that the department has not taken the lessons from wrongful convictions to heart:
She says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, "Well, my God, why did this happen in Morton?" Or Ochoa and Danziger?
While I agree with the need to re-evaluate internal practices when false convictions occur, to me Lehmberg's response raises an even more troubling concern. As is often the case when interpreting political rhetoric, perhaps more important than the incumbent's actual statement is what she left unsaid. The DA doesn't say which cases she's talking about and Grits can't tell from the context. She said the exonerated two were based on false eyewitness IDs, for example, so that wouldn't include Christopher Ochoa and Richard Danziger. So she seems to be downplaying and understating her office's problem with false convictions.

In addition, she's seemingly not including the Yogurt Shop defendants among the exonerated. There, DNA evidence obliterated the state's theory of the crime, causing the convictions to be overturned and the defendants to be released. If Lehmberg is not including those defendants in the totals, that means she's clinging to the preposterous unindicted co-ejaculator theory involving some mysterious fifth perpetrator unforeseen by the prosecution's theory nor referenced during the lengthy interrogations that led to the overturned confessions. (Perhaps she's only including cases that came to the office while she was sitting as DA, but she was First Assistant for a dozen years before that and a key decisionmaker on the appeals and writs in question.)

So my concern is less that the office hasn't learned any lessons from the two cases that they grant resulted in false convictions, but more that she seems to remain in denial over false convictions in the Yogurt Shop and Pizza Hut murder prosecutions that gives me pause about her re-election.

Baird, by contrast, has consistently been on the cutting edge of the notion that false convictions could be rooted out while still ensuring the guilty are convicted, standing up as a leader on the issue as far back as the late 1990s both while serving on the Court of Criminal Appeals and afterward, leading Grits to recently call him "virtually the father of Texas DNA exonerations" for his role in the Roy Criner case.

Lehmberg's somewhat blindered, bunker mentality IMO doesn't stem from some nefarious desire to falsely convict anyone but from the tunnel vision that comes frpm working as a prosecutor in the same office for nearly forty years (which is how long she'll have been there when this contested next term ends). My sense is Charlie Baird will be more willing to try new things and move more aggressively to improve processes when errors happen, if only because he'll have no personal, institutional stakes in defending the status quo, a reflex which from time to time seems to stymie the incumbent.

This is one of several issues that to me clearly delineates the candidates and makes me come down on the side of Judge Baird. Every politician has flaws and like Craig Watkins in Dallas, I won't agree with him on every issue. But Judge Baird would enter the job unfettered by decades of institutional baggage that IMO  limits the incumbent's vision, not to mention possessing a more profound appreciation for the implications of DNA exonerations for the prosecutorial profession. I don't know if Democratic primary voters will understand that distinction, but to me it's an important one.


Marian Hoy said...

I’m so glad many have started paying attention to the current DA. I've watched Lehmberg for years, and her inability to demand accountability for the continued shooting deaths of unarmed minorities by Austin police shootings is indefensible.
Apparently Ms. Lehmberg has forgotten her ‘job description’ according to the Texas Code of Criminal Procedure, Article 2.01, is: “. . . It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. . .”
When Austin police shot Nathaniel Sanders in the back and killed him on 5/11/09, Lehmberg did not prosecute. The city of Austin paid Key Point (a national company who provides unbiased evaluations of police shootings) upwards of $50,000.00 of tax payer dollars to conduct an independent review of the officer involved shooting of Sanders.
Key Point stated: “. . .significant tactical errors that rose to the level of recklessness were made by the involved officer [who killed Sanders], and that but for this recklessness the use of deadly physical force might very well have been avoided. We have also found the use of deadly physical force was NOT justified.”
Even though Key Point presented verifiable evidence (enough to legally prosecute the officer who killed Sanders) to APD, Austin Police Monitor, Chief Acevedo, Lehmberg, among other city officials, but the DA never filed against that officer.
Also, in the Bryon Carter case, the officer involved was ‘no billed’ by the Grand Jury. On 5/31/11, Bryon sat, unarmed, in the passenger seat of a vehicle. Police shot wildly 5 times, hitting the driver once or twice, but killing Bryon. The officer who killed Carter was no billed.
Where is the accountability for those two deaths? Why aren’t charges brought against those officers?
For the 5 New Orleans officers who shot innocent and unarmed people, in the aftermath of Hurricane Katrina, there were not only convictions, but prison sentences of 65 years for one officer. Two others received 40 years apiece, two others 35 years apiece, and one received 6 years.
The country is demanding accountability from prosecutors, and we should too!
One must be aware that there is a grassroots movement against the blinding power of the criminal justice machine that continues to indiscriminately kill. Across the country, police murder is routinely neutralized by a disreputable DA who makes empty public statements saying the officer who murdered was a hero in the shooting death, while the unarmed victim is made out to be culpable for his own death.
I’ve also watched Charlie Baird. Remember, he’s the judge who came out of obscurity to posthumously exonerate Tim Cole. Tim was arrested and convicted in west Texas in the early 1990’s for sexual assault he did not commit. After 14 years in prison, Tim died of an asthma attack. Judge Baird was the one who stepped up and said, “I’m going to correct this wrong.” And did! It was the first posthumous exoneration in this country. Judge Baird took a chance because it was the right thing to do!
It appears that Baird isn’t afraid to stand up for minorities and those of us who fall victim to the criminal justice machine.
I want to see the mandated ‘job description’ of a District Attorney’s to ‘see that justice is done’ fulfilled in each and every case!
I want the criminal justice system to stop being manipulated by disreputable prosecutors, and I want the criminal justice system to begin working for the people, just as it was designed to do.
Thank you!
Marian Hoy
Former Dallas police officer and trainer of police for 31 years

Thomas R. Griffith said...

Hey Grits, on behalf of the; past, present, & future (VOTS) Victims of the System ‘thank you’ for honoring Judge Baird’s rare and heroic actions regarding his role in the righting of a sub–group of wrongs perpetrated by rogue prosecutors seeking convictions at all cost.

We can only hope and pray that he chooses to go the extra mile and takes a stand for the historically ignored claims so we can bestow upon him another honor and title of the Father of Non-DNA, Non-Death Row, Exonerations, & Unexonerated. *Until then, we will continue to squeak in mass at the polls and beyond. Thanks.

Thomas R. Griffith said...

Ms. Hoy, I hereby nominate you as a candidate for the PNG Public Hero Award. The taxpayers and voters of Texas in general owe you a great debt of gratitude for giving 31 plus years of service and taking a public stand against; bad cops, rogue prosecutors & those that enable them.

Contrary to the modern day mantra regarding what's believed to be the leading cause of wrongful convictions, I can assure you that each and every single case was initiated at the moment of arrest or so called detainment. Prosecutors chose to charge vs. releasing and let the taxpayer pick up the tab. Your students undoubtedly carried your teachings well into the field and throughout life. Thank you for having the guts to call out the bad and stand up for the good.

Phillip Baker said...

I have no axe to grind with Lehmberg on any particular issue, but second Grits idea that she has just been in that office too long and has acquired the tunnel vision that seems to go with it. Judge Baird would be a breath of fresh air into the very stale club of Texas DA's. I've talked with him about his positions and came away very favorably impressed. We really need to break this 'DA to judge' track that is all too prevalent. We have now packed our legal system with people of only one view, and that is bad governance.