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.