When DNA exonerations end, innocence problems will continue

Well, light posting turned to no posting as I spent an exhausting couple of days at the 3rd Annual Texas Innocence Conference, from which I returned last night. (The drive, more than the event, is what did me in.) I'll have writeups from my notes over the next couple of days, but let me start the review with a few comments and big-picture thoughts.

Proximo over at Dallas Sidebar (who I enjoyed meeting and putting a face to a pseudonym) offers his take on the conference, which he considers a positive development. Proximo disputes higher estimates of innocence claims, though he grants (and it'd be hard not to), that thanks to revelations about innocence, the system has "suffered some measure of disgrace."

I concur with Proximo 100% that most people in prison are guilty of whatever they were accused of, although I think the percentage is a little lower among probationers, since DA's plea out their weaker cases, and innocent defendants have a big incentive to take a plea to avoid prison. But anyone attempting to estimate the number of innocent people convicted, whether on the low or high side, believes that SOME innocent people are convicted, so that agreement allowed cops, prosecutors and the defense bar at this conference to all start with that bit of common ground and discuss the more important question: Why?

DNA exonerations have allowed us to go back and look at why these cases happened, and it would be a travesty if the state of Texas did not seize the opportunity to fix some of the most prominent causes

• Faulty eyewitness identification
• Failure to check alibis or corroborate victim testimony
• Faulty testimony by informants looking to cut a deal
• Crime lab failures and forensic pseudoscience
  
• False confessions based on coercive interview techniques
• "Brady" violations (failure by prosecutors to turn over exculpatory evidence)
• Ineffective assistance of counsel
  

To me, whether the number wrongfully convicted is low or high, when patterns emerge in HOW people were wrongfuly convicted, those problems still deserve to be fixed. In addition, testimony from exonerees and their lawyers showed that the procedural barriers for challenging convictions may be too high, since legitimately innocent people for years couldn't get into court to challenge what had happened to them before DNA testing burst the dam.

The modern "innocence" movement began because DNA evidence allowed investigators to go look at old cases and actually prove to a certitude that the jury got it wrong. Though DNA exonerations will continue to dominate the news for a while (another innocent man will walk out of a Dallas courtroom this afternoon after 27 years in prison), the number of DNA exonerations will decline in the coming years, predicted Jeff Blackburn of the Innocence Project of Texas, because most counties outside Dallas have not maintained historic DNA evidence, so innocents convicted there won't have the same tool to prove they didn't commit the crimes alleged against them.

That won't mean, though, that the system no longer convicts the innocent, only that the unique window into historic truth provided by DNA will no longer be available. DNA evidence exists in only about 10% of violent crimes, according to forensic expert Dr. Bill Tillstone whose talk I'll discuss at length soon, and in most old cases that evidence has been destroyed. So in 90% of violent crimes and most most other prosecutions, that avenue simply isn't available for someone to prove their innocence.

I was disappointed that no one from the Texas Legislature attended the event (though a couple of Court of Criminal Appeals judges were there - they funded the conference with a grant). Last session the House Criminal Jurisprudence Committee, which covers most of the issue areas discussed at the conference, turned into a killing field for innocence-related bills. I doubt those legislators would be so quick to dismiss the topic if they'd heard the detailed expert critique of the system presented at this event.

Finally, I left the conference with the growing impression that police officers and prosecuting attorneys may be poorly represented by their lobbyists at the Texas Legislature. I had the chance to talk to many ADAs, investigators, and cops at the event, and the common theme from all of them regarding everything from lineup procedures to an "open file" policy was, "just tell me what the rules are, and I'll follow them."

By contrast, speaker Jim McLaughlin from the Texas Police Chiefs Association parroted the line that his group, police unions and prosecutor lobbyists at the Lege have maintained since the DNA cases started cropping up: Don't change any laws or procedures, just give us more resources (i.e., money) and we'll do a better job. Not only is that not good enough in the face of evidence of obvious flaws leading to convicting innocents (e.g., the evidence is very strong that existing police lineup procedures encourage bias), it doesn't represent the views of law enforcement officers I spoke to who thought it'd be fine to change the laws to make the rules more fair.