The Austin Chronicle

Rooting Out the Causes of Wrongful Conviction

By Jordan Smith, March 8, 2013, 8:30am, Newsdesk

It's been a decade since legislation was first filed to create an "innocence commission" to investigate the causes of wrongful convictions in Texas. Although she's not the first, San Antonio Democratic Rep. Ruth Jones McClendon hopes to be the last to carry the bill. Will this sixth filing of the bill be the charm?

The proposal has morphed a bit over the years, but the goal of the bill – this session, House Bill 166 – is to create a body to review cases in which a defendant has been formally exonerated, in an attempt to discover the root causes of wrongful conviction – no small task in a state that since 1989 has seen well over 100 exonerations.

Named after the state's first posthumously exonerated inmate, who died in prison while serving out a sentence for a 1985 rape he did not commit, the proposed Timothy Cole Exoneration Review Commission would be made up of nine unpaid members appointed by the governor. Among their duties, the members would be tasked with making "thorough review or investigation of all cases in which an innocent person was convicted and exonerated" in order to determine the causes of the wrongful convictions; "ascertain errors and defects in the laws, rules, proof, and procedures applied" in prosecuting the wrongfully convicted; and consider and develop solutions to correct the errors found.

For sure, the job would involve some heavy lifting – in addition to reviewing each exoneration, the commission would be tasked with reviewing every writ of habeas corpus filed with the Court of Criminal Appeals (roughly 3,000 each year, McClendon noted) to identify any ethical violations or issues of misconduct at the hands of attorneys or judges, and to report those violations to the appropriate state agencies – but McClendon told the House Criminal Jurisprudence Committee on March 5 that the state owes it to Texas exonerees to work to prevent future miscarriages of justice. "Whenever we convict someone based on invalid evidence … we waste public funds on the prosecution and incarceration of a person who is not responsible for the crime," she told the committee.

Among those testifying in favor of the bill were a handful of exonerees – most had been victims of misidentification by eyewitnesses (the single largest known cause of wrongful conviction), some in cases where the real perpetrators remain unidentified. "Our state does not need bragging rights for being the number one state in the nation for convicting innocent persons," McClendon noted, "but that's where we are right now."

At issue in part is that there is no one group or body currently tasked with identifying the causes of wrongful conviction, testified Kathryn Kase, executive director of the Texas Defender Service. Appellate courts can only address issues brought to them, for example, and only in cases that are appealed. Anthony Graves, she noted, who spent a dozen years on death row as part of the nearly two decades that he was locked up for a multiple murder he didn't commit, was finally freed based on the state's failure to disclose exculpatory evidence (a so-called Brady violation), but there are plenty of other errors in his case that have never been vetted. The criminal justice system is "large, complicated and expensive," she said, and "we owe it to the public to investigate" when things go wrong – akin to the National Traffic Safety Board, which investigates airline or other transportation-related accidents. "Public safety," she said, "is equally [as] important" as transportation.

Shannon Edmonds, director of government relations for the Texas District and County Attorneys Association was less enamored of the legislation; the TDCAA has never been more than lukewarm about the proposal. This time around, Edmonds raised a raft of perceived pitfalls – including that the proposed commission might be hijacked for political purposes, as he claimed the Forensic Science Commission was by foes of the death penalty. Edmonds was referring to the complaint filed with the FSC regarding the case of Cameron Todd Willingham, who was convicted and ultimately executed in 2004 based on now-discredited arson science. Whether the FSC could hear that case at all was the subject of much debate – until Gov. Rick Perry effectively ended the discussion by reworking the commission to install as its chair his political ally, then-Williamson County District Attorney John Bradley. (Bradley was voted out of office last year for his role in blocking access to DNA testing for Michael Morton, who spent nearly 25 years behind bars for the 1986 murder of his wife.) Still, Edmonds referred only to death penalty foes gumming up the commission works, in their quest to identify that "mythical innocent person that has been executed [wrongly] in Texas," a situation he said might also plague an innocence commission.

Moreover, he said he isn't sure the commission is even necessary because, unlike Kase, he said he believes the work to parse cases of wrongful conviction is already being done by the innocence projects at the state's law schools. It is true that the student-staffed innocence projects have played a role in helping to exonerate inmates and that they are required by law to report on the exonerations they are involved in. But not all of the state's exonerations are prompted by student review. Many others come from the work of the lawyers with the Innocence Project in New York, through the work of independent Texas attorneys, or by prosecutors themselves – such as has become a fairly regular occurrence under Dallas County D.A. Craig Watkins. As such, not every Texas exoneration is now subject to detailed review, as Edmonds implied. Dallas County leads the state in the number of exonerations; in 2012, six men in Dallas were exonerated (a seventh, Ricky Wyatt, was released after 31 years in prison, but he has not yet been formally exonerated). Yet, according to the 2012 annual report of the Texas Indigent Defense Commission, just one exoneration report was completed last year and just two are expected in 2013.

To McClendon, the time for the commission is most certainly now. "It is in our best interest to stop sending innocent men and women to Texas prisons for crimes they did not commit," she said. "It's within our power to stop doing that."

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