Beyond the Iceberg's Tip: Dallas to extend innocence investigations beyond DNA cases

Dallas District Attorney Craig Watkins will extend his department's efforts to identify innocent people who've been wrongfully convicted beyond just DNA cases, the Dallas News reported yesterday ("Dallas DA's scrutiny of non-DNA cases may alter view of inmates' innocence claims," April 28):

Mr. Watkins, a career defense lawyer before his election in 2006, said he is convinced that systemic problems he describes as "rampant" in the DNA exonerations provide a valuable road map for further investigations.

The number of cases in which untested DNA evidence is available continues to diminish with time.

But problems such as faulty identifications, inept defense attorneys or evidence suppression still may be found in non-DNA cases. Soon, Mr. Watkins' year-old conviction integrity unit and the Innocence Project may take on even more non-DNA cases that most prosecutors routinely resist.

This is exciting news, and Craig Watkins continues to rise in my esteem as this process unfolds. The most important aspect of the DNA exonerations, beyond freeing 16 innocent men convicted in Dallas County, was to show that the same handful of problems consistently caused most wrongful convictions, and those problems exist in cases where no DNA exists to test.

According to one of the lectures at the recent Actual Innocence conference in Plano, no DNA evidence exists to test in 90% of violent crimes, and Dallas is the only county in Texas that even kept DNA from decades-old cases. So if one assumes the same problems found in these 16 cases also caused wrongful convictions in other cases where DNA wasn't found or preserved, all of a sudden we're talking about potentially hundreds of innocent people convicted, possibly thousands statewide.

That's a particularly salient point in Dallas, where more innocent people have been exonerated from wrongful drug convictions - 24 people set up by an informant in the Dallas "fake drug scandal" - than have been exonerated through DNA.

IMO the first cases they should look at also stem from the 2001 fake drug scandal. The informant who set up those folks with fake drugs was also used in hundreds of cases involving real drugs. In one case we know of, the informant admitted setting a person up using smaller amounts of real drugs, and that person was also released. But then-DA Bill Hill refused to re-examine all the other cases made with that informant using real drugs; I've always wondered how many of those folks were set up, too. It always appeared to me in that case the informant was the real drug dealer and using bits of his own stash to set up others, but there are likely people still in prison based on cases he made.

The fake drug case involved outright fraud by police and informants, but victim and witness misidentification remains the biggest cause of wrongful convictions discovered in Texas and nationally, not only in DNA cases but by the courts. Since 1994, reported the News, the Texas Court of Criminal Appeals "exonerated inmates in five non-DNA cases – each involving victim recantations. Three of those cases were sexual assaults from Dallas County."

Even expanding the scope of their inquiry, though, it's likely to ignore most wrongful convictions because they ended in plea deals instead of trials. The case of James Ochoa described recently in the Los Angeles Times makes that point. Ochoa, now a Texan, accepted a guilty plea after a trial judge "basically told Ochoa to plead guilty if he wanted a lighter sentence." Later, authorities tried to say his plea "contributed" to his wrongful conviction and tried to block him from receiving compensation.

But the truth is the system puts innocent people in a position where, for many, the most rational option is to take a plea bargain to receive a lighter deal, particularly since prosecutors tend to offer probation, frequently, to resolve their weaker cases. I suspect a not-insignificant percentage of the 98% of criminal cases resulting in pleas also accused innocent people.

These cases may be almost impossible to resolve in retrospect without the benefit of definitive proof like DNA. But going forward changes can be made by policy or next year by the Legislature to minimize the problem in the future, e.g.:

• Changing photo lineups to show pictures sequentially, use double-blind procedures, and ensure the victim or witness isn't pressured to make a choice.
• Require corroboration for all informant testimony
• Videotape all police interrogations

You can't solve a problem until you admit you have one. With the admission that wrongful convictions happen in more than just DNA cases, this discussion takes an important step toward achieving those kind of broader procedural changes.