Responding to unanswered questions on Rodney Ellis' innocence legislation: "How much of an innocence problem do we really have in this state?"

The Houston Chronicle published a feature on Friday ("Ellis works to halt false convictions," Feb. 4) discussing legislation in state Sen. Rodney Ellis' "Innocence Protection Package": "Ellis' bills include many of the [Timothy Cole Advisory] panel's suggestions, including uniform procedures for eyewitness identification, requiring investigators to record interrogations in serious felonies, streamlining defendants' appeals for DNA testing, and reorganizing Texas' indigent defense task force." The story by Bobby Cervantes gave a great deal of space to pro-death penalty zealot Dudley Sharp, who issued some ignorant criticisms of the bills that the article left unanswered:

Dudley Sharp, a death penalty advocate and founder of Justice Matters, said anti-death penalty activists inflate the number of innocence claims to create a sense of urgency to pass the bills.

"How much of an innocence problem do we really have in this state?" Sharp said. "Before we do legislation, I would like to have identified how much of a problem this is, really?"

He said innocence advocates do not separate the number of actually innocent exonerees — meaning they had no connection to the crime - and those who are released based on a legal technicality or error.

Ellis' bill to require police to record interrogations also raises concerns about what evidence prosecutors will be allowed to use in court, Sharp said.

"Sometimes it's a lot easier to get a confession from somebody at the scene or right when you arrest them, where they're emotional, they'll waive their rights, and they'll confess," he said. "There has to be a provision whereby all of that stuff can still come in, and a judge can weigh the credibility of allowing it into trial. You can't just exclude them."

Ah, Dudley, Dudley, Dudley ... where to start? Let's take the last item first: Sharp's criticism of requiring recording of custodial interrogations after violent crimes. It's clear from his comments that Sharp is completely shooting from the hip. He hasn't read Ellis' bill and doesn't realize there are specific provision addressing each of his "concerns," which are less concerns than red herrings thrown up to divert attention from more probative debates. For starters, the bill says interrogations must be recorded unless "good cause exists that makes electronic recording infeasible," which would include his example about confessions at the scene.

Sharp also doesn't seem to understand that the bill does not apply the exclusionary rule when confessions aren't recorded - the only "remedy" is a jury instruction, so the bill would not prevent a jury from hearing about un-recorded confessions at trial. I think it should, but that's not what the bill does. Instead, they'd just be told that the law requires recording and the police didn't do it. Big whoop.

So these criticisms all are based on false information provided to the reporter by Sharp himself, which I'm sorry to say Mr. Cervantes could have easily checked (and debunked) just by reading the bill. It's hard to understand why these arguments were even allowed into the story, much less why they were allowed to go unquestioned.

Similarly, Sharp wonders aloud, "How much of an innocence problem do we really have in this state? ... Before we do legislation, I would like to have identified how much of a problem this is, really?" But this is a question that can actually be answered, or at least reasonably estimated. So, since the Chronicle didn't take up the task, let's run through the various available estimates.

For starters, the Chron notes, there have been 42 DNA exonerations where biological evidence tested years after convictions proved (to the satisfaction of the courts, at least) that the convictions should be overturned based on actual innocence. Keep in mind, though, that a) biological evidence only exists in 10% of violent crimes, and b) most agencies have thrown away or failed to test potentially exonerating evidence. So those 42 cases represent essentially a microsample of a much-larger pool of innocent people convicted where DNA either doesn't exist or was never tested.

In 41 of Texas DNA exonerations, innocent men walked of prison; in the other, Timothy Cole, who died while incarcerated, was exonerated posthumously. Half those cases (21) came out of Dallas. So to reach a back-of-the-envelope estimate, here's the current breakdown of DNA exonerations:

• Dallas: 21
• Rest of State: 21

Since DNA evidence is only available in 10% of violent crimes, assume that innocent people among those 90% cannot be exonerated by DNA and remain in prison. That would bring the total of convicted innocents exonerated and in prison to:

• Dallas: 210
• Rest of State: 210

But Dallas kept their old evidence and DA Craig Watkins teamed up with the Innocence Project of Texas (for whom, in the interest of full disclosure, I'm currently working as a consultant) to vet old cases for possible innocence claims. In the rest of the state, most jurisdictions threw evidence out in older cases, or else have thousands of rape kits in untested backlogs. It's probably generous to assume most jurisdictions kept biological evidence in even 10% of old cases, even more so to believe that those samples have all been tested. But even if both those unlikely assumptions were true, that would still mean our estimate for the likely number of innocent people in the rest of the state goes up by another factor of ten, or:

• Dallas: 210
• Rest of State: 2,100
• Total: 2,310 innocent people in prison or recently exonerated

Notably, that gets us right into the ballpark with other possible methodologies of estimating innocence.

Josh Marquis of the National District and County Attorneys Association used his own back-of-the-napkin methodology to estimate an actual innocence rate of .75%, which would be about 1,200 prisoners currently incarcerated in Texas. Looking at the rate of Texas death row exonerations and applying it to the whole prison population would get you around 2,400 innocent prisoners. Applying other innocence rates estimated from various sources to Texas' large prison population gets estimates as high as 3,500 to 5,000 innocent prisoners out of those currently incarcerated.

All of these estimates, I've argued, may understate the false conviction rate by excluding drug war cases. And whatever rate one decides is fair to apply to the prison population, the rate among probationers is likely a little higher because of the incentive innocent people have to take a deal to avoid incarceration.

These false convictions are happening for specific, often repetitive reasons: The most attention has been focused on the failure by police to use best practices for eyewitness identification, but there are a litany of other contributing factors (which regular readers could likely recite) like mendacious informants, goal-oriented forensics, false confessions, and occasionally even police and prosecutor misconduct. On some of these topics, the Texas Lege may take a few baby steps this year, as with Ellis' "Innocence Protection Package," but by no means will these much-compromised bills solve the problem.

So yes, 42 DNA exonerations in Texas are a serious concern. But what's outright alarming is that these men represent just a handful out of hundreds or likely even thousands of other innocent people sitting in Texas prisons who modern technology cannot liberate.

Dudley Sharp wants to deflect debate on innocence legislation into a simplistic up or down vote on the death penalty, even though hardly any of Texas' DNA exonerees came from death row. These bills are instead about those hundreds or thousands of innocent non-death row prisoners, and the future thousands who should never end up in prison in the first place if the system can weed them out before a wrongful conviction ever occurs.