Exoneration Review Commission To-Do List Part 1: Broaden the Conversation

As Grits has been reporting in recent days, the newly minted Timothy Cole Exoneration Review Commission ("TCERC") has, at long last, commenced its work to review "cases in this state in which an innocent defendant was convicted and then, on or after January 1, 2010, was exonerated." Given that the group has just over a year to complete its work - its authorizing legislation requires that a report be produced by December 2016, at which point the Commission is dissolved - it will quickly need to settle on a plan of action, and craft a narrow focus for its work.  The Innocence Project of Texas has issued its own recommendations for how the Commission should proceed - recommendations that I plan to comment on in a second post on this topic.  But for today, I thought I might humbly weigh in with my own brief thoughts about the work on which the TCERC is embarking.

The overarching principle driving the bullet-point recommendations below is the following:  Texas should leverage the work of the TCERC to generate *new* insights in the innocence-driven criminal justice reform conversation, by attending to features of adjudicatory error that the innocence lens neglected to date.  Examples of such neglected issues include false guilty pleas, wrongful conviction in low-level (non-felony or less-serious-felony) offenses, the role of informants in wrongful conviction, and the responsibility of defense counsel for error non-detection; and the list could go on. 

The point is that the study of wrongful convictions to date - through other states' exoneration review commissions, academic work, and advocacy groups like the national Innocence Project - has generated what scholar Sam Gross dubs a "canonical list" of the "causes" of wrongful conviction. But nothing like rigorous (or even un-rigorous) empirical methodologies have generated that list, as I have argued elsewhere.  Rather, these are the features that emerge from (1) a particular category of cases, mostly serious, violent felonies for which (a) defendants are serving long sentences and thus have the incentive and ability to vigorously litigate innocence, and in many cases (b) physical evidence susceptible of DNA or other forensic testing is available, and (2) a particular menu of options that legal doctrine (as well as political constraints) supply for framing post-conviction claims of innocence.  Too abstract?  The professor will get specific.  Low-level crimes for which individuals are serving relatively short sentences receive next-to-zero accuracy-based scrutiny following conviction, because there is neither time nor incentive to do the litigation that typically generates exonerations.  Convictions obtained by guilty plea, which are the vast majority of misdemeanors and non-violent felonies, receive next-to-zero accuracy-based scrutiny because of waivers of review that attend the plea process, and because these convictions rest on negotiation strength, rather than evidentiary strength.  Investigative or adjudicatory deficiencies that do not sound easily in constitutional litigation, such as the use of unreliable informants (not illegal in and of itself), do not readily emerge as documented bases for exoneration insofar as the post-conviction litigation process is the diagnostic device.  This is not to say that what we think we know about wrongful convictions is wrong.  But it is almost certainly incomplete.   

My hope is that the TCERC will transcend the limitations of the standard wrongful conviction frame and generate insights that will expand the impact of an innocence-based reform frame to corners of the criminal justice system that to date have not been adequately probed and critiqued by that frame.  How can it do that?  Here are some broad-brush recommendations that might put the group on a path to achieving that goal.

• Avoid the lure of the "canonical list."  Enough said on this front.
• Ditch the litigation record and take a "systems approach."  The Commission should eschew reliance on the findings of error in post-conviction litigation as a starting point or focus for review.  The Commission model permits reconstruction of failed investigations and prosecutions *outside* the adversary model of litigation, and without the imperative of identifying *legally relevant* causes of error or attributing *blame* for error.  It is that approach - a "systems approach" - that has been successfully followed in health care, aviation, and other industries that routinely conduct reviews of failed cases.  Researchers are advocating adoption of "systems review" in criminal justice, and the TCERC could and should be on the vanguard in this respect.
• Play the "three year old" game ("Why???").  Perhaps this goes without saying, but rigorous interrogation of causation requires boldly continuing to ask "why" something occurred.  Our adversarial legal system cuts off the "three year old" game, both because some answers are not legally relevant (it doesn't matter, for example, "why" exculpatory evidence didn't reach a defendant, under Brady doctrine), and because some answers are not strategically helpful (it's not helpful, for example, to a Brady claim if defense counsel got a little lazy in looking under the hood of the prosecution's case).  The TCERC has none of these legal constraints.  It must also, of course, eschew any political constraints in playing the three-year-old game.  If the game leads to tried and true systems of plea negotiation, or of defense funding, or of informant tracking, or of bail assessment . . . so be it.
• Prioritize low-level cases in the review.  The TCERC should avoid any temptation to concentrate its finite resources on the most "serious" cases that have emerged since 2010.  Texas has the "good" fortune of having a data set of dozens of plea exonerations, thanks to an array of laboratory errors in DWI and drug cases.  This presents a rare opportunity to examine why defendants plead guilty to demonstrably false charges.  

Grits' note: This is the inaugural post from Jennifer Laurin, a UT law professor (currently visiting faculty at Columbia) and IMO one of the sharpest minds in the state when it comes to evaluating the causes of false convictions and related errors. She's coauthor of the newest edition of Police Misconduct Law and Litigation, and is currently serving as Reporter to the American Bar Association's Criminal Justice Standards Task Force charged with updating the 1996 3rd Edition Discovery Standards. Please give her a warm welcome, I couldn't be more grateful to Jennifer for helping class up the joint.