Monday, August 30, 2010

The Tim Cole Advisory Panel Report: Too Much Ado, Not Enough Done

Hey everybody, Jeff Blackburn here. Scott asked me to do some guest blogging during his well-deserved vacation. This my first post. Be as hard on me as you want.

On Wednesday of last week, my good friend Ana Yáñez-Correa reported on the meeting of the Task Force on Indigent Defense that had just happened. She called the meeting and what came out of it a “Great Day for Justice in Texas”.

I was at that meeting. I have to tell you that it didn’t make me feel warm, fuzzy or full of pride for Texas. I handled the Tim Cole case and represent his family, and if what happened at the Court of Criminal Appeals last Wednesday was a “great day” then we are all getting way too accustomed to way too little.

Ana is a strong thinker, a rock-solid activist and a very close colleague of mine. I think she and her outfit have done a great deal for the criminal justice reform movement. That’s why I was disappointed that she chose to give so much credit to the Task Force on Indigent Defense (TFID). If you read her post or listened to the self-congratulatory tone struck at the meeting, you would think the TFID is at the cutting edge of reform in this state. That is a long way from the truth.

I’m not saying that what happened on Wednesday set back the cause of justice or was the equivalent of nothing at all. I am saying that what the TFID did was take some small, long-overdue steps and suggest that they were giant leaps.

A good example of this is the report of the Tim Cole Advisory Panel on Wrongful Convictions (TCAP). That report can be found here. It is well written and carefully researched, thanks to the efforts of the TFID’s Dr. Jennifer Willyard.

The problem is not what the report says or how it reads. It is what it does not say.

As readers may remember the TCAP was created by the last legislature. The panel’s purpose was to prepare a study of the causes of wrongful convictions and make legislative recommendations.

The panel was mainly composed of politicians, prosecutors, ex-prosecutors, and police officers. There were no members of any innocence project on it (although, to be fair, folks connected with such projects were allowed to attend meetings.) Most of the panelists had undeniably good intentions. They worked hard at the report and it shows.

Intention and effort aside, however, what the panel finally came up with was a largely watered-down version of what has already been in play in prior legislative sessions. The panel could have gone much further. Instead, it chose to take a predictable path of limited resistance and avoid controversy.

On eyewitness identification, the panel recommended that the next legislature pass only a “training bill”. This kind of bill, which was before the legislature last session after a great deal of compromise, emphasizes training police departments in better eyewitness identification procedures. Given the sorry state of current “procedures” being used by cops throughout the state- many of which involve outrageously suggestive tricks like one-person “showups” (see the terrific 2008 report of the Justice Project here for an idea of how bad things really are ) this would help, but only a little. The limitations of the approach taken by TCAP are carefully examined by U. of H. Professor Sandra Guerra Thompson, a panelist who went to the trouble of writing a concurring report. Her position, which is well-researched and thoroughly explained, points out in detail the diluted nature of what the panel is recommending. Read it if you want to see how much more can and should be done in this area. Wonder why no one seemed to make much mention of Professor Thompson’s report at the meeting?

The panel also dealt with recording custodial interrogations, discovery reform, DNA testing, and whether we should have an innocence commission. Some of the recommendations are good (recording custodial interrogations and junk-science based writ reform, for example); some not so much (reciprocal discovery in criminal cases? Why not full discovery of the State’s file and leave the defense alone?). The report’s recommendation to shelve the idea of an innocence commission in favor of state-funded innocence projects sounds okay until you read the fine print where it advocates adding a staff member to the TFID at the expense of the already ridiculously underfunded projects, none of which currently receive enough money to get the job done.

Are the ideas and proposals in the TCAP report terrible? No. They are just too limited. This panel was set up as an independent body that could have done a lot more. It could have advocated a comprehensive reform of the writ system- a system that has been designed to ensure that most claims of actual innocence never see the light of day. It could have tackled the issue of lousy trial representation that has caused the vast majority of wrongful convictions so far and called for the creation of a statewide public defender system. It could have recommended measures to eliminate the use of junk pseudo-science in trial courts. These are the kind of big reforms that we need to make to really stop wrongful convictions and get more innocent people out of prison.

Instead of advocating such changes, the panel contented itself with making limited recommendations that have all been made before. By breaking no new ground, TCAP chose to focus on what it saw as “do-able”. That’s fine, I guess, and expected: after all, this is Texas and most of the panelists were criminal justice officials.

Less expected, however, is the attitude of many reform advocates toward this report. To imply that the adoption of the TCAP report is a big move forward, or to suggest that it somehow signals a major change in policy, is giving too much credit to officialdom.

The Tim Cole case itself was brought to public attention against the opposition of all kinds of officials, from Lubbock County on up. If we had relied on the conventional system to take care of the situation nothing would have happened and no one would have heard of Tim Cole, much less named panels and statutes after him.

We have a hard legislative session ahead. Money, money, and money are going to be the topics of the day. If we expect to get anything done at all with criminal justice reform we are going to need to be a little harder ourselves. We need to approach this session with big proposals. They will get whittled down, just as they were in the TCAP report. In the meantime, we need to start calling things like they are instead of praising the system for what is ultimately still too little and too late.


Gloria Rubac said...

Thanks, Jeff, for reminding us that we should not be so grateful for what the state should have already been doing. Justice in this malfunctioning criminal justice machine is so little so late, that when the right thing does happen, we feel so grateful. But, thanks to lawyers like you and the IPOT, we know that we deserve the whole pie and not just a piece. Or in many cases, just the crumbs. Keep us updated on what to expect in the upcoming leg session as death penalty activists will be lobbying for justice for ALL, including those on death row.

Anonymous said...

What disgusts me is that the Texas legislature is more than willing to pay the exonerees off with settlements but not willing to address the root cause(s). The transition from being being stupid on crime to being smart on crime is still a long way off.

Ryan Paige said...

I grew up in Amarillo, and I frequently thought Jeff Blackburn was a bit of a left-wing nut. It turns out he was just ahead of his time (and still ahead of the times as they run in Amarillo, Texas).

In terms of eyewitness identifications and line-up procedures, I can see wanting to believe that training officers to use "best practices" would result in improvements in the system, and in a perfect world, it probably would.

But I look at Durham, NC where the police department had policies requiring officers to use sequential line-ups with five fillers for every suspect that are administered by people with no connection to the case. And when a high-profile case comes up, police immediately abandon those procedures in order to get someone, anyone identified that they can indict.

Was anyone punished for those breaks in procedure? Not really.

And North Carolina has an open discovery law in place, but that didn't stop the D.A. from entering into a conspiracy to withhold test results from defendants. It was only the extremely high profile nature of the case that the D.A. was punished at all (one day in jail for contempt for repeatedly lying about evidence, as well as being disbarred).

Given how infrequently police officers and prosecutors are punished for breaking the rules, there's a great deal of incentive to bend the rules (especially if those rules are just "best practices" that aren't even procedure or law) in order to get the "bad guy" in jail.

Anonymous said...

I was wondering about this Task Force on Indigent Defense. Do you consider them indigent if they are able to successfully hide their illegal booty? I'm sure they don't declare their income from drugs sales or from burglaries, etc. Or does anyone care? Just wondering.

Whitney Stark said...

Um, anny, if they're able to "successfully hide their booty", then how would anyone know about it?? You should go to TFID's website if you're actually interested (unless you're just throwing out red herrings) because they have extensive information about the verification process to determine that a person is indigent.

Anonymous said...

Let's say we are dealing with a criminal who is a real slacker. He lays around the crib and doesn't manage to get out and have a "payday" more than once a week. Even for this slacker this amounts to 52 paydays a year.

If he is arrested for two of these payday events that still leaves 50 paydays that he has successfully hidden. Fifty paydays can add up to a lot of loot which he is not likely to talk about even to the TFID (who, by the way, believe he is innocent as well as indigent). See what I mean. How are they going to verify his income?

Mark # 1 said...

Uh, not to confuse the attempted "lawn order" troll, but being "accused" of a crime--and EVEN being "arrested" for a crime--does not equate to "guilt" of a crime. It's in the constitution; you might try reading it sometime, as it protects everyone--even those such yourself who would seek to deny its protections to others.

robynterese said...

I hope that this is just the beginning of nationwide justice reform. It's wonderful that headway is being made. It's disturbing that even in the face of these revelations and exposure of the flaws in the system, which include outright misdeeds of some of those responsible for the administration of justice, that these acts, omissions and other unethical and unconstitutional concerns continue to plague many, resulting in false arrests, false confessions, and ultimately, false convictions. There MUST a nationwide protocol, possibly established at the federal level, which will hopefully bring consequences should there be a breach. As a society, we should all be responsible, not turning our head when our fellow man is victimized by the justice system. The "win at all costs" mentality should be abolished.

Anonymous said...

Anonymous said...
I was wondering about this Task Force on Indigent Defense. Do you consider them indigent if they are able to successfully hide their illegal booty? I'm sure they don't declare their income from drugs sales or from burglaries, etc. Or does anyone care? Just wondering.

8/30/2010 03:34:00

Spoken just like the po-po. Your post is a "reach" considering the number of DNA exonerations in "dumb on crime" Texas! Are you really that stupid? I guess you are just another cog in the machine that got us in this mess in the first place.

Anonymous said...

hide their illegal booty?

This is Texas. All booty is illegal.


Nick said...

In Texas where the legal age of consent is 17, you should have no issue finding legal booty.

sunray's wench said...

As your token "outsider", I have real difficulty understanding why, in 2010, Texas still has a problem with recording interviews. From our own experiences, I can't get my head round the police being able to interview a suspect when that suspect is not medically fit to be interviewed (ie, so high on drugs or alcohol that their statement can only be recalled later because it was written down for them).

And as for full disclosure on both sides of evidence in the case - why is this seen as so bad in Texas? Are your lawyers so unsure of their abilities?

Mark # 1 said...

Actually sunray, Texas' stance on "interviews" of criminal defendants is not too bad. To be admissible, the custodial statement must be recorded, and the defendant must have been given his Miranda rights--which also must be recorded. Of course, the fight often then devolved into whether the defendant was in "custody" or not.

Anonymous said...

Jeff - Contact me;
The panel IGNORED the PRIMARY cause for wrongful convictions. That is Prosecutorial and Judicial Misconduct and Malfeasance.

Anonymous said...

in Texas it doesn't matter whether you have been read the Miranda rights, I have many such stories.
In Abilene they set up offenders who have not been tried , to make sure they get convicted.
The scenario goes like this:
Jailer kicks the cr...out of offender, then gives him an overdose of amphetamines so he is taken to hospital. Being incoherent from the drugs, he makes some wrong moves and is accused of attacking an officer. To make it a ittle more comprehensive, they add on "attempted escape". It is not nessesary to have any other witnesses than the officer. The officer who smuggled drugs into the jail goes on trial tomorrow but the young offender gets 10 years . I can't wait to see how much or little time he gets.

The Team said...

Mr. Blackburn, please consider this very informative Post as Vol. 1 of a series of future updates to come. We need and love this type of first hand reporting that isn't watered down by politics, politically correct rules and editors. Keep telling it like it is, was & should be.

To be honest (you said to be as hard as we like) you sir, in the beginning were not liked very well by some of us due to your law firm's decision to only point the Innocence Project toward claims hinging on DNA, Death Row, and Open Cases. When the decision was made to ignore the rest, it basically divided the state right down the center leaving it up to other projects to fill the void. Yet, every single project/group/center to follow has simply mirrored the policy to ignore the rest. Basically creating a new form of discrimination and/or classism, while appearing to be addressing the problem as a whole.

Due to the multi-facetted lists of reasons as to why everyone (including the TBP&P) declines to vett claims of innocence involving closed/cleared cases having absolutely nothing to do with DNA & Death Row, we created PNG and formed our own Team to shine a light on this seemingly taboo area. We follow(ed) GFB, The Justice Project, Defending People, and Simple Justice as we embarked on a shoestring mission to assist in the criminal justice system reform movement. Once we learned that the Innocence Project was attempting to bring about much needed reforms regarding the causes of false arrests and wrongful convictions, we quickly became supporters.

It’s hoped, that one day you’ll announce that the days of the I. P. ignoring the problem as a whole as come to a halt. For as it is now, counties are setting up and forming their own integrity style units that simply and blatantly continue to ignore the rest while appearing to address the problem as a whole. Texas gave in and allowed a panel to be formed and named after one individual with reforms on the agenda but somehow left out the reforms you and others mentioned. This should have been expected due to the panel’s contestants.

The next panel should be named after the ‘problem’, comprised of: two victims of the system, two taxpayers/voters, two reporters, two high school seniors, two State Reps., two Senators, and the two people running for Governor of Texas. Just our two cents and some change. Thank you.

Anonymous said...

These "panels", and other temporary commissions, are usually established to COVER UP malfeasance by those who live off of our tax dollars.
THUS; the focus is on DNA and "new science". It is a way to shift the blame away from those responsible.
They want to hide the fact that many who live off of our tax dollars are traitors. These traitors, and often the panel members that cover for them, have no interest in "preserving, protecting, defending the Constitution and laws of the United States and of this State" (their duty, see sec. 1, Art. 1, TX Const.) They are opposed to the Rule of Law, to Liberty, to Justice. They found the way to wage ware against us, against our Nation, and against our STATE (governments) is by obtaining employment IN the entity they want to destroy.
The Gig is Up. The internet has made it harder for them to hide.
I am very happy to learn about THE TEAM and the PROJECT: NOT GUILTY.

Anonymous said...

NOTE: Our Constitutions (both Texas and US) provide for the Right to Counsel for any person charged with a crime. Indigence is NOT required.
The Founders did this intentionally. They wanted to keep the government from brining frivilous charges against us. Today, as they feared, our public saftey and criminal justice systems have become an extortion racket. Criminal Charges are brought to pump up crime statistics so that police officers, attorneys (both prosecution and defense), and judges, can be employed at our expense. They will ruin our State and our Country. It's started already. Its just a matter of time until our systems collapse, just as other authoritarian systems have in the past.

Anonymous said...

Thanks Jeff for this enlightening post! Speaking of "falsely accused", we estimate that there are hundreds, possibly thousands of falsely accused "sex offenders". Many are currently incarcerated, others took plea deals on the advice of inadequate council and/or the fear of losing years of their lives to a jury who would hear little more than the words "child molester" or "rapist". How sad for this country. How sad for the people who will bear the label of "sex offender" for an offense that was never committed.

Anonymous said...

They're all innocent.

Anonymous said...

Thank you for mentioning the false accusation for sex offenses. You are right on the money ( this couLd be a Pun)

The Team said...

3:06 & 3:17 - hello, you my friends have hit the nail on the head. Cities, towns, and hole in the walls have gone bankrupt, been forced to downsize, & cut services. All due to the bribes/settlements/lawsuits paid out regarding police misconduct but gets blamed on the economy. Don’t believe it? Check out Injustice Everywhere and see for yourselves.

Factor in the state's payouts (The Texas Tab) for wrongful convictions ($80K per yr. per human, plus-plus) & you see tax dollars greasing the (cherry picked claims) squeaky wheels. The same tax dollars that pays the bad cops, rogue ADAs, lazy judges, their staff(s)salaries, & pensions. This is what you get when the ‘root” problem is ignored and there are no checks and balances. Thanks for supporting the cause and for understanding the everlasting effects. *We are always looking to see what logical solutions others have to offer up to end this ground hog day of a circle jerk. Anybody?

Anonymous said...

The criminal justice system is an extortion racket. Police officers, prosecutors and judges act without regard to the rights of suspects. It's an authoritarian system.