Convicting innocent people a 'badge of honor' under old mentality, says Dallas DA

To judge by its title, Fox News contributor Radley Balko's latest column ("Straight Talk: Duke Case Shows Justice System's Flaws," April 23) addressed prosecutor misconduct in the Duke lacrosse fiasco, but he used most of his allotted space to compare the incident to police and prosecutor misconduct in Texas, writing:

The same week the Duke players were exonerated, another man was cleared of rape charges as well. James Giles was convicted in 1982 or raping a woman in Dallas County, Texas. Giles served 10 years in prison and a 14 as a registered sex offender.

He lost his marriage and contact with much of his family and couldn't travel 10 miles outside his home without first obtaining permission. He was cleared by DNA evidence, with the help of the fantastic organization, the Innocence Project.

Giles isn't alone. He's the 12th man in Dallas County to be exonerated by DNA evidence. There are more than 400 others there waiting for DNA tests, and even the district attorney there believes a large percentage of them may be innocent.

"It's a new day in Dallas," said Dallas County's district attorney, Craig Watkins, after announcing Giles' release. Dallas County has a long history of tough-on-crime prosecutors and indifference to criminal justice protections that may have put hundreds of innocents in prison — or to death.

Referring to the old mentality, Watkins added, "if you sent someone to jail who was possibly innocent, it was a badge of honor."

Watkins' quest to clear the names of the innocent is aided by the fact that Dallas County coincidentally has historically preserved blood samples from cases involving violent crime. Most other jurisdictions across the country only recently began doing that.

It's likely of no coincidence that the one jurisdiction where blood samples have been preserved is also one that's finding a shocking number of convictions of innocent people.

If there's one positive that might come out of the Duke imbroglio, it's that the unusual demographics of the parties involved and alliances it spawned may mean some much-needed new scrutiny of the criminal justice system, and win welcome new advocates for reform.

Nifong is by no means the only overly aggressive prosecutor in this country. And Durham is by no means the only jurisdiction where the wrong people have been wrongly accused. As Seligmann suggested, the only real difference may have been that the Duke players had the resources to fight back. Many others don't.

Examples abound.

A 2002 audit of the crime lab in Houston, Texas, found that experts may have given "false and scientifically unsound" testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. The city is finishing up a $5.5 million review of 2,300 cases, including death penalty cases.

In 2003, Texas Gov. Rick Perry pardoned 35 mostly black residents of Tulia, Texas, who had been prosecuted for drug crimes based on testimony from undercover police officer Tom Coleman. Coleman, once named Texas "Police Officer of the Year," was found to have manufactured evidence from whole cloth.

For as long as I've followed these issues, Texas prosecutors have been perhaps the most powerful special interest in state politics on criminal justice matters, rivalled only by local police unions and their two statewide associations. It's ironic that it was prosecutors' opposition, not the ACLU or some liberal group, that at least temporarily held up Jessica's Law in the Senate. Others get to make suggestions, but this bunch is used to making policy under the pink dome; the most shocking thing about the passage of HB 8 to long-time Lege-watchers is that it happened against their wishes.

Balko's right - as egregious as was the Duke lacrosse case, how much worse are the DOZEN wrongfully convicted in Dallas who collectively spent decades behind bars for the crimes of others? (Fourteen other DNA-exonerated Texas convicts have gone free statewide.) The cases Balko cites show the pendelum has swung too far in these special interests' favor, and the Lege would be wise to ignore their pleas for greater power without fixing some of the problems.

To that end, it's worth noting that the Texas Senate also just passed Rodney Ellis' three so-called innocence bills (discussed here and here), all of which are worthy of support. One increases compensation for wrongfully convicted people, and another establishes an "Innocence Commission" to vet postconviction claims of wrongful conviction. But in particular I wish the Senate had gone much further with SB 799. As finally approved it appoints a four member group drawn solely from law enforcement to create a model policy based on best practices for eyewitness identification.

As my father would say, that's better than a sharp stick in the eye, but we don't really need to research this subject further. These problems weren't invented in Texas, and social scientists have pretty much identified what's wrong with how police perform lineups and how to fix them. What's needed is legislative will to tell police they have to change their ways. That, the Senate did not do.

Here are some minimum standards that I wish the House would make mandatory in the bill instead of creating a study group:

• Require that lineups and photo arrays be presented to victims or witnesses by a neutral officer who is not investigating the case and who does not know which person is the suspect. This is the equivalent of a double blind scientific test and dramatically improves accuracy.

• Show photos or individuals to witnesses one at a time instead of as a group to avoid the implication that "one of them" is the offender.

• Require the person showing the lineup or photo array to a witness to tell them the suspect may not be one of the people they see, and that the investigation will continue whether they identify someone or not.

There are other measures that would boost lineups' objectivity (see California's suggested best practices), but these three we know for sure are contributing to misidentifications in Texas. Why not require double-blind lineups and one-at-a-time photo arrays NOW, then study what else should be changed down the line in some future model policy?

So far the Lege has done little in 2007 besides Ellis' three bills to address the rash of recently discovered wrongful convictions. If those are all the 80th Legislature is going to pass, I hope the House Criminal Jurisprudence Committee beefs up that one aspect of Ellis' "innocence" package. It's not only good public policy, it would help save DAs like Craig Watkins the trouble and embarrassment of having to release more innocent people down the line.