Good vibes at Tim Cole advisory panel on false convictions, but devil still in details

I attended this morning the first meeting of the Timothy Cole Advisory Panel on Wrongful Convictions (discussed here), and though it was only an introductory meeting, its overall zeitgeist was positive.

Jim Bethke of the Task Force on Indigent Defense chaired the meeting. Bethke's boss, Presiding Judge Sharon Keller of the Court of Criminal Appeals, was also there, seated next to Innocence Project of Texas chief Jeff Blackburn, oddly enough. Judge Barbara Hervey from the CCA was also there, along with Wichita County DA and prosecutors' association president Barry Macha, police chiefs association lobbyist Jim McLaughlin, Carl Reynolds of the Office of Court Administration, Edwin Colfax from the Justice Project, Mary Ann Wiley from the Governor's office, Jim McReynolds and Pete Gallego from the Texas House, and staffers from John Whitmire and Rodney Ellis' offices in the Senate. Also gathered around the table were several mambers of Tim Cole's familiy, including his mother and his half-brother Ruby and Cory Session. Several other staffers and reporters rounded out the attendees.

Cory Session was invited to open comments from the group, and he began by thanking the Governor for signing the bill creating this panel and for supporting several innocence-related bills at the Lege last spring, only a couple of which actually reached his desk. Session said Texas has an "addiction to conviction" and called for entering a "12-step program."

Cory said he and his family were recently in Washington D.C. to lobby for eliminating income tax on rewards for false compensation, and had the opportunity to speak with Newt Gingrich, who told him in front of a tableful of folks, "You'd be surprised how many people are in prison who were wrongfully convicted." He said Gingrich later spoke with him privately and reiterated that he believed convicting actually innocent people was a significant problem that wasn't prioritized as much as it deserved.

Tim Cole was a military veteran attending college after serving his country, "pursuing the American dream," his half brother said. At one point while incarcerated, Cole wrote to his sister, "I still believe in the justice system, even though it doesn't believe in me," his brother recalled, breaking up briefly in the midst of what was really a stirring oration, culminating in a call for flags in Texas to be lowered to half mast on December 2 at 4:15, which is the date and time his brother died.

I was also interested to hear Cory critiquing dog scent lineups, which was a frequent topic of discussion at the meeting. "We've got to have more corroborating evidence than just Scooby Doo," said Session. Dogs "can't sniff innocence and they can't sniff guilt, either."

Once Cory wrapped up, Bethke asked panel members to each speak to their own thoughts about and aspirations for the panel, and there were surprisingly large areas of consensus, though also clear fault lines.

There were lots of feel-good comments, including some from surprising sources. Jim McLaughlin from the police chiefs' association said "Police agencies are part of the problem. We know that. That's why we've got to be part of the solution."

Mary Ann Wiley, the Governor's representative, said she personally thinks we've "danced around" innocence issues for "far too long." She said the Governor is interested in "getting the system as just as humanly possible."

Wiley also mentioned that one of the ironies of the Cole episode is that she was a prosecutor who convicted Jerry Wayne Johnson as a juvenile; Johnson is the man who actually committed the rape Tim Cole was convicted for. I hadn't realized before now she'd had any personal connection to the case.

That said, Wiley declared advocates needed to do better educating legislators, noting that in the closing days of the session in the Texas Senate, several key senators demonstrated "ignorance due to a lack of knowledge," and that there were "big misunderstandings" on the Senate floor that came from "misinformation that stopped this bill from being a vehicle for other things."

Wiley said everyone basically knows what needs to be done, the question is really "How are we going to sell this?," not "What are we going to do?" She also mentioned that science today is moving at a breakneck pace and the law needs to change more rapidly in response.

CCA Judge Barbara Hervey gave an update on the high court's Criminal Justice Integrity Unit, declaring that she hoped to call another meeting next month and she planned to put out a survey to Texas judges about their thoughts, knowledge, etc., about the new National Academy of Sciences report on flawed and untested forensic methods. If they ask they right questions, that could be a useful data set.

University of Houston law prof Sandra Thompson (?) said she'd become professionally interested in these issues after giving a presentation in class on the relative unreliability of eyewitness testimony. A student came up to her afterward to ask, if this evidence is so unreliable, how could anyone be convicted solely on eyewitness testimony and sustain the conviction "beyond a reasonable doubt"? The law prof said she realized she had no good answer for that, and has been performing research for the last several years on the causes of false convictions.

Speaking to Tim Cole's family directly, Wichita County DA Barry Macha, the President of the District and County Attorneys Association, said what happened to Tim Cole a "mistake, but the bigger mistake would be to not do anything to keep it from happening again." He also noted that DAs supported the innocence legislation up last session, though I'm afraid that was only partly true. In truth, the DAs (especially from Harris County) insisted on what House Criminal Jurisprudence Chairman Pete Gallego called "weakened, watered down versions [of the bills that were] ... nowhere near what we needed."

However, Macha made an interesting observation that's worth repeating: He pointed out that the Texas criminal defense lawyers' association was the main opposition to eyewitness ID reform in the Texas House this spring, and that's 100% true. (He could have also mentioned that Mark Clark of the Houston police union opposed the bill on the Senate side in an over-the-top fashion.) But he's right that TCDLA opposed any eyewitness ID bill that did not include the exclusionary rule as a remedy, even knowing that the Governor's people had said many times that doing so would guarantee the bill's veto. The DAs' Association, said Macha, was willing to accept mandatory police policies on lineups and a jury instruction as a "remedy" for violating them, as were the Innocence Project and other bill supporters. But the defense bar (or at least TCDLA's Austin lobbyists) decided to try to kill the bill rather than compromise.

That observation leads us back to Mary Ann Wiley's critique, of course - not enough groundwork has been done yet to convince the necessary special interests to go along with reforms. You can't blame others for holding conflicting opinions: Innocence advocates, myself included, simply haven't done enough yet to convince the right people to push these issues over the top.

Who else needs to be brought on board? The police unions mostly stayed out of the fight last time except for the largest Houston police association, which was quite active in its opposition. The Harris DA's office fought Sen. Whitmire's writ reform bill until the bitter end of session, even though they admitted in public hearings the bill addressed a legitimate problem. (In the end they finally, grudgingly compromised.) Judges had not been consulted much, and certainly not polled directly for their opinions, as Judge Hervey proposes to do. Basically, nobody had done the legwork necessary to bring them on board. And in the legislature's upper chamber, senators Nichols, Huffman, Patrick and Nelson were powerful naysayers who will need to be convinced to pass stronger legislation.

House Criminal Jurisprudence Committee Chairman Pete Gallego, in his usual soft-spoken way, declared that he was "Outrageously disappointed with the state of law in Texas." He said one of the most important lessons he tries to teach his five year old son is the importance of being "strong and courageous enough" to own up to mistakes and/or wrongdoing, and he expected no less from Texas state government.

Gallego disagreed with Wiley and Macha who had suggested that the goal of the Advisory Panel should be to sell the compromise bills left hanging in 2009, which Macha said the DAs would agree to (or most of them, anyway). Gallego said those bills were too weak to solve the problem and thinks the panel needs to reach consensus on more substantive, meaningful reforms to propose in 2011. Of his expectations of the group, the chairman said he wants 1) agreement in both concept and detail, 2) a plan for "How are we going to fess up and make this right," 3) to make sure the legislation solves the problem (he thought the lineup and writ bills as compromised were too weak), and 4) the state through its actions must restore the faith of the people of Texas in the justice system.

If I had just one, tiny quibble with Chairman Gallego's comments, it was when he said false conviction "doesn't happen often, in my view." Regular readers know I've tried to track estimates of actual innocence from various sources over the past few years on this blog. Using the most conservative estimates from the national DA's Association, perhaps 1,200 Texas inmates currently incarcerated are innocent people falsely convicted. Other relatively conservative estimates would suggest that 2,000 up to as many as 5,000 total inmates currently incarcerated in Texas prisons are actually innocent. Even the lowest estimates aren't small numbers and imply that there's a lot of work left to do to get every innocent person out of prison.

Judge Sharon Keller made a brief remark toward the end herself, declaring she sees a "danger" in adopting a "tone" that blames this or that public actor for false convictions. That's probably sound advice, but it also seemed a tiny bit self serving since many people might want to blame Judge Keller and the Texas Court of Criminal Appeals for at least part of the problem. (You've got to give her credit, though, for showing up to the event after everything she's been through lately.)

Judge Barbara Hervey spoke next, suggesting that from the 6-8,000 habeas writs they review every year, Brady violations (failure to turn over exculpatory evidence) appear to be among the most common recurring problems raised. She suggested better training for prosecutors and the defense bar to make sure the defense gets all the evidence they're entitled to up front.

State Sen. Rodney Ellis' chief of staff (and 2010 Harris County judicial candidate) Brandon Dudley echoed Gallego's concerns that the four bills from last session were not the end all be all of possible solutions, but also with Wiley that a big part of the task was selling it.

In all, perhaps the most remarkable thing about the meeting was a relative consensus that these were real problems and something must be done, though only time will tell whether the panel will ultimately back strong recommendations. But the terms of debate have changed about "actual innocence," to judge by this collection of opinion leaders. Five or ten years ago, some of the special interests in that room would have insisted false convictions happen so rarely that we needn't concern ourselves with them, and anybody claiming otherwise would be considered a liberal weenie who's soft on crime. Nobody's saying that now.

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