A first look at Exoneration Review Commission recommendations

See the new report from Texas' Timothy Cole Exoneration Review Commission, released this week. Let's review their main proposals:

ELECTRONIC RECORDING OF INTERROGATIONS 

I. Require either audio or audiovisual electronic recording of interrogations by law enforcement agencies when investigating all felony cases. 

II. Require recording to begin when the suspect enters the interrogation room. 

III. Enforce compliance with new recording requirements by permitting the admission of an unrecorded statement only if the judge finds good cause for the failure to electronically record the statement, and establishing a presumption that an unrecorded statement is inadmissible as evidence if the judge finds that no good cause exception applies. 

This is a much needed reform. According to the report, 68 percent of Texas law enforcement already have capacity to record some interrogations. So this recommendation would pick up those other stragglers and make the policy's application uniform across the state.

The commission recommended recording interrogations for all felonies instead of only serious violent felonies, as suggested in compromise legislation that failed in the past. But, as a dissenter pointed out, given how cheap and ubiquitous recording equipment is in the 21st century, there's really no good reason not to do it for misdemeanors, too. This is as much a best-practice as a reform, since recorded statements from a witness are superior evidence to written confessions. A stakeholder survey whose results were published in the report found that 88 percent of judges and 85 percent of police at NON-recording agencies thought recorded interrogations were beneficial; 72 percent of prosecutors and 70 percent of defense attorneys agreed.

FALSE ACCUSATION/INFORMANT REGULATION  

I. Require prosecutor offices to have written policies on tracking and disclosure of impeaching information on jailhouse informants.  

II. Permit the admissibility of jailhouse informants’ complete criminal history, including criminal charges that were dismissed or reduced as part of a plea bargain. 

III. Require prosecutor offices to establish an internal system to track the use of jailhouse informants including, but not limited to, cases in which the jailhouse informant offered testimony and the benefits provided in those cases. 

These important suggestions represent the minimum necessary just to evaluate the problem. Transparency is a first step toward reform, not an end game. But these would be a good start. The Tarrant County District Attorney, the report noted, implemented precisely this sort of tracking system in June 2016.  In Grits' view, there's no reason to limit such a tracking system to "jailhouse informants," but instead anyone who trades testimony for leniency should be included in the system.

OTOH, they famously had such an informant tracking system in Orange County, CA, too, they just used it to aide in perpetrating abuses instead of documenting and rectifying them. So, while tracking informant use is a fine suggestion - and I believe the information generated could better inform a future round of more substantive reforms - these recommendations won't prevent some of the worst abuses which arise from prosecutors trading dismissals or sentence reductions for testimony.

FAULTY EYEWITNESS IDENTIFICATION  

I. Require training for law enforcement officers on eyewitness identification procedures. 

II. Require making juries aware of prior identifications of the suspect by the witness when an in-court identification is made.  

III. Require law enforcement agencies to adopt the Bill Blackwood Law Enforcement Management Institute of Texas Model Policy. 

Here, Grits wishes the commission had dug in more deeply. The biggest problem with the eyewitness ID law we passed in Texas is that there's no enforcement mechanism. If police don't follow best practices, the questionable ID cannot be excluded. And the statute includes no jury charge or other mechanism to highlight the use of problematic testimony to a jury, whom studies show are highly likely to accept eyewitness identifications as "gold standard" testimony. A recent dissent from Court of Criminal Appeals Judge Elsa Alcala demonstrated how and why problematic ID practices have been allowed to continue by Texas courts even after reform legislation had passed. In that case, an identification was allowed even though the defendant was the "sole one in the photo array matching the physical description of the shooter."

Grits isn't saying these recommendations are bad ideas; I support them. But it's one thing to require agencies to put good policies down on paper, and quite another to penalize them effectively if they then choose not to follow them. That's where Texas has fallen down.

FORENSIC SCIENCE PRACTICES  

I. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the use of drug field tests used by law enforcement agencies.  

II. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the process of crime scene investigations.  

III. Recommend that crime labs in all cases moving forward complete testing of substances in all drug cases regardless of the results of a drug field test, and that crime labs go back through previous cases in which the collected substance was not confirmed by lab testing.

These recommendations are aimed at the exonerations out of Harris County of drug defendants accused by faulty field tests. Many defendants have been falsely accused, jailed, and pled guilty to get out before the crime lab could reach exonerating results, sometimes months or even years later.

Again, Grits finds these recommendations too tepid. Perhaps most critically, they made no suggestions for rectifying notification issues regarding large-scale forensic errors. Many defendants never discover they might be eligible for habeas corpus relief, and there are plenty of systemic actors - especially among tuff-on-crime prosecutors and the Government Always Wins faction at the Court of Criminal Appeals - who would prefer they never do. The first step toward securing justice for them would be to make sure they're aware of their situation.