Archive for the ‘Wrongful Convictions’ Category

The current issue of the American Criminal Law Review has a review essay of Failed Evidence: Why Law Enforcement Resists Science (2012).   According to the review, the book “engages…broadly with forensics” to explore “why law enforcement and prosecutors have shown such marked reluctance to incorporate a modern understanding of the scientific method.”  The review concludes that Failed Evidence “provides a thoughtful analysis of the scientific bases underlying forensics, current evidentiary and investigatory problems, and possible solutions. [The] suggestions are particularly well thought-out because they consider the problems faced by law enforcement when implementing ideal solutions in the real world.”

You can read the full review here.


I wrote in an earlier post that a wrongful conviction amounts to a triple tragedy.  First, the wrongfully convicted person ends up in prison.  Second, the victim is deprived of real justice.  Third, the real perpetrator remains free, and can victimize others.

Today, let’s consider another kind of cost: money paid in compensation to those wrongfully convicted.

In twenty-seven states and the District of Columbia, those wrongfully convicted are eligible to receive some amount of compensation.  No state has to do this; there is no constitutional obligation.

Texas, which has had more wrongful convictions than any other state.  Dallas County,  alone, has twenty-four, a larger number than every state except Illinois and New York.  Perhaps because of of the magnitude of its problem, Texas has one of the more generous compensation schemes in the country.

According to an article in the Austin American Statesman, Texas has paid out some $65 million dollars in wrongful conviction compensation.  This is an enormous amount of money, and according to many authorities, the amount will certainly grow over time.

What accounts for this in Texas, a state that had a lock-’em-all-up mentality on crime for so many years?  One answer comes from Texas State Senator Rodney Ellis, one of Texas’ leaders on criminal justice reform.  “The justice system in Texas had fundamental flaws, and this is the result.  At this point, I don’t think anyone can seriously doubt that we had a problem — a big problem.”  Another member of the legislature, Senate Criminal Justice Committee Chairman John Whitmire, sees the compensation as a way to get the system to respond to the mistakes of the past.  “I’m committed to correcting the problems we know have been a problem in our system in the past. We have to make the system accountable.”

Of course, it is worth pointing out that this isn’t the only monetary cost of wrongful convictions.  Costs for trials and appeals of the wrong people can run into the millions of dollars before a person is exonerated.

Prosecutors, police, and some lawmakers have opposed the compensation system.  Some of them believe the compensation system in Texas is too generous.

But some folks in Texas disagree.  As Chairman Whitmire says, “it’s just the right thing to do.”  Legislative spokesperson Jeremy Warren adds that “people can get upset about the level of compensation, but imagine spending years and years in prison for a crime they did not commit. If it was you, how much would be enough?”

So if tougher-than-tough Texas can do this, why can’t other states?

This week, Jurist, a national and international legal reporting website, is featuring my commentary on Failed Evidence.   Here’s a quick sample:

[The] image of a deep alliance between police work and modern science is misleading at best. With the exception of DNA work and certain kinds of classic chemical analysis, law enforcement generally does not embrace existing scientific work. In fact, police and prosecutors in the US resist science. The scientific work I am referring to involves the testing of the more traditional techniques of law enforcement investigation and prosecution: not the high-tech sheen of the DNA lab, but scientific testing of eyewitness identification, the interrogation of suspects and the more traditional forensic methods such as fingerprint identification. This is the daily bread and butter of law enforcement, and scientists have found it wanting. The science on these basic police investigation methods has existed for years — some of it for decades. It is rigorous, and has undergone peer review, publication and replication. It tells us what the problems with traditional police work are, and also gives us some straightforward ways of solving these problems. Yet, most — not all, to be sure, but most — of American law enforcement continues to resist this science and refuses to change its basic tactics to reflect the best of what science has to offer.

Jurist mixes straight reporting and commentary from the U.S. and around the world; it’s a great source for anyone interested in issues of justice and how it plays out in domestic and international situations around the world.  (Full disclosure: Jurist is supported by my own institution, the University of Pittsburgh School of Law, and has been guided and run since the beginning by my esteemed colleague, Professor Bernard Hibbitts.)  Check it out.

In connection with my talk on Failed Evidence at U. Minnesota Law School Thursday, Nov. 8, take a look at my Commentary piece in today’s Minneapolis Star Tribune, “In Some Areas, Law Enforcement Still Resists Science.”  Here’s a sample:

Everywhere you look, law enforcement and science seem to have formed a partnership. Look at the headlines on any given day, and there’s something like “DNA convicts killer in 1992 cold case.” Turn on the television, and there are the police in “CSI” and its innumerable clones solving cases with high-tech gadgets and test tubes and computers. The message is clear: The bad guys don’t stand a chance against the police officer and the scientists working together.

There is some truth to this: DNA has become an identification tool of unequaled power. But look beyond DNA, and you’ll see something different: When the science concerns eyewitness identification, suspect interrogations, or more traditional, non-DNA forensic testing, law enforcement doesn’t embrace science. Most police agencies and prosecutor’s offices in the United States actively resist the scientific findings on these common types of police investigation.

When I explain conviction integrity units (CIUs) — units lawyers in a prosecutor’s office whose job is to examine past convictions when real claims of actual innocence surface — most people understand that CIUs make sense.  They create an institutional process to investigate and resolve questions about past cases in which the system may have convicted the wrong person.  That in itself is a good thing.

In Failed Evidence, I make a further argument: CIUs are a necessary ingredient if we are to change law enforcement practices to reflect the best science we have.  Here’s why.

For more than two decades, the starting point of reform in the criminal justice system has been the wrongful convictions uncovered through DNA testing.  These cases, which now number three hundred, exposed many of the weaknesses in our traditional police practices.  Finding and righting these miscarriages of justice has been one of the major issues for  criminal justice reformers.  And rightly so: a justice system that tolerates these kinds of catastrophic mistakes lacks integrity and will eventually lose public confidence.

These efforts must, of course, continue.  But we also need to energize efforts to change the practices that lead to these mistakes.  To make those changes happen, we need the involvement not just of advocates for the wrongfully convicted, but also of police and prosecutors themselves.  Sometimes, those folks are reluctant to become involved if they think reform efforts will be about blaming them and pointing out their mistakes.  Thus one of the keys to success is to focus the effort on reforms going forward — how do we prevent mistakes in the future? — while at the same time, creating a regular way for the mistakes of the past to be confronted and corrected.

That last part, of course, is where CIUs come in.  If every prosecutor’s office had a CIU, cases of possible wrongful convictions would be referred to that unit in the regular course of business.  It would become part of the institutional infrastructure — one of many standard operating procedures.  Citizens would have confidence that these kinds of injustices would be dealt with.  And that would, I hope, free up our criminal justice leaders to pursue the question of how we do better as we go forward.

This isn’t a perfect solution, and in an upcoming post I’ll address a couple of very perceptive comments I’ve already received criticizing this approach.  But I do think it would be a substantial advance over what we have now.

This week, prompted by an article in the  New York Times on October 27, I’m writing about Conviction Integrity Units (CIUs).  These are small groups of lawyers inside a prosecutor’s office — just like a homicide unit or a narcotics unit — who have the job of investigating bona fide claims of actual innocence in prior convictions originating in the same office.

CIUs are a relatively recent phenomenon.  The first well-known CIU was established in Dallas in 2006.  In that year, voters elected Craig Watkins DA of Dallas County, Texas.  Watkins was the first African American ever elected to the office of DA anywhere in the history of Texas. At that time,  Dallas  County by itself had had more cases of wrongful convictions,  discovered through DNA testing, than all but a handful of states.  Watkins was elected on a promise to clean up the mess, and one of the first things he did was establish the CIU in his office.  He soon began to have the CIU work in partnership with Texas Innocence Project.  The Innocence Project served as the investigating and screening system for claims of actual innocence, which it then brought to the attention of the CIU.

In the almost six years of its work, the Dallas DA’s CIU has uncovered and righted some grave miscarriages of justice: DNA testing revealed that those convicted had not committed the crimes.  In some number of these cases, the CIU investigation and DNA testing has also managed to find the real perpetrators by comparing crime-scene DNA with DNA samples in existing databases.   In others, the CIU’s work has confirmed the guilt of the convicted.

Watkins’ CIU proved to be an example for a few other DAs.  The first was Pat Lykos, elected DA in Houston in 2008.  (Lykos lost her bid for re-election earlier this year, for reasons having nothing to do with her CIU.)  This year, the DA in Manhattan announced that his office will create a CIU, and the Times article tells us that the Brooklyn DA has established one already.

Readers: Do you know of a DA’s office with a CIU?  Tell us where and how long it has been around.

In the course of Failed Evidence, I argue that every prosecutor’s office needs a conviction integrity unit (CIU).  And in “Exoneration and Freedom For a Man Convicted in ’10”  (N.Y. Times, Oct. 27) we get a perfect example of why CIUs are so important.

The article concerns a robbery case brought against Lawrence Williams by the Brooklyn (N.Y.) District Attorney’s office.  The only evidence against Mr. Williams was a faulty eyewitness identification, but it was enough to convict him.  Eventually, another man, already in prison, confessed to the crime.

What makes the case unusual is that Mr. Williams’ post conviction claim that he was innocent was investigated not by an outside agency, but by a CIU inside the Brooklyn DA’s own office — the same DA’s office that convicted him in the first place.  The Williams case is the first such felony case that the Brooklyn DA’s CIU dealt with.

A CIU is a specialized group of lawyers within the DA’s office — just like the ones for sex offenses or for homicide — with the special job of investigating prior convictions in which there are plausible claims of innocence.   In other words, when a real claim surfaces that a conviction that the office obtained in the past is wrong and should be investigated, the CIU attorneys investigate, and tell the DA whether or not the conviction should stand.

CIU’s are incredibly important for two major reasons.  First, they become the regular institutional mechanism for addressing claims of wrongful convictions and actual innocence.  Courts are not set up to correct these types of mistakes, and the CIUs fill this enormous gap.  Second, with a regular mechanism in place to handle this task, reform efforts can concentrate on fixing the system going forward, and they are not consumed with the important work of getting justice in individual cases.

Every prosecutor’s office should have a CIU, or at least one attorney who handles CIU-type matters.  It is an innovation that will make prosecution better, and provided DAs with a regular way to correct mistakes and learn from them.

Readers: Does the DA’s office in your jurisdiction have a CIU?  Does it need one?

Upcoming posts will discuss the history of CIUs, why the Bro0klyn CIU stands out, and other issues.