"EVEN MORE FRUSTRATING, WHEN JURISDICTIONS DO FIND BATCHES OF OLD EVIDENCE - AS IN BEXAR COUNTY WHERE THE SAN ANTONIO PD FOUND MORE THAN 5,000 UNTESTED RAPE KITS LANGUISHING IN STORAGE - THEY FREQUENTLY CHOOSE TO TEST ONLY FOR GUILT, BUT DO NOTHING TO IDENTIFY POSSIBLE INNOCENCE CASES. IN DALLAS, AFTER HIS PREDECESSOR FOUGHT DNA TESTING TOOTH AND NAIL, DISTRICT ATTORNEY CRAIG WATKINS FAMOUSLY PARTNERED WITH THE INNOCENCE PROJECT OF TEXAS TO VET OLD CASES AFTER THEY FOUND A SIMILAR DNA CACHE, A MOVE WHICH HAS AFFORDED HIM NATIONAL ACCLAIM. BUT IN BEXAR COUNTY, DA SUSAN REED HAS SO FAR REFUSED TO FOLLOW HIS LEAD."
GRITS FOR BREAKFAST; MARCH 1, 2010;
(Grits for Breakfast is a gritty Blog which says it "looks at the Texas criminal justice system, with a little politics and whatever else suits the author's fancy thrown in. Its motto is: "Welcome to Texas justice: You might beat the rap, but you won't beat the ride.")
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BACKGROUND: Timothy Cole, whose cause has been championed by state lawmakers and others, was found guilty in the 1985 rape of a Texas Tech student and was sentenced to 25 years in prison. His conviction was based in part on the victim's identification of him as her attacker and what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole's name. Cole died in prison in 1999, at age 39, after an asthma attack caused him to go into cardiac arrest. Following repeated confessions by another man, Cole was cleared by DNA evidence in 2008, and a state judge exonerated him in 2009. His family pursued a pardon, but Perry had said he did not have the authority to grant one posthumously. That changed after Perry announced that he had received legal advice to the contrary.
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em>"The Texas Board of Pardons and Parole has recommended a pardon for Timothy Cole, who died in prison of an asthma attack before DNA could prove he was innocent of the rape for which he was falsely convicted, Reports the Fort Worth Star-Telegram," The Grits for Breakfast post, published earlier today, begins, under the heading, "Timothy Cole pardon recommended: How many more false convictions are out there?"
"It would be the state's first posthumous pardon", and [Governor Rick] Perry has indicated that he would sign an order clearing Cole's name if recommended by the board," the post continues.
"Gov. Perry looks forward to pardoning Tim Cole pending the receipt of a positive recommendation from the Board of Pardons and Paroles," Perry spokeswoman Allison Castle wrote in an e-mail to The Associated Press on Saturday.
Cory Session, who has been fighting to clear his brother's name for years, said he anticipates that the governor will sign Cole's pardon in March during a ceremony in Fort Worth.
"To say that the wheels of justice turn slowly would be an understatement," Session said Saturday.
"The question is: How many more Tim Coles are out there?"
Excellent question, Cory. Keep asking it!
In partial response to Session's query, Dave Mann at the Texas Observer published a column last week titled "Who gets wrongly convicted and why?," in which he broke down the causes of wrongful convictions among the first 250 DNA exonerations in the United States. (Timothy Cole is not on that list of 250 because his pardon hasn't been finally approved, but he'll be added to it soon.)
In many cases, Mann points out, more than one single error contributed to the erroneous outcome. For example, 78% of cases involved faulty eyewitness identification, but in 38% of cases, two or more witnesses made false identifications that DNA later disproved. Just over half of cases - obviously including many with faulty eyewitnesses - also included forensic errors, and just over a quarter involved false confessions.
Remarkably, seventeen DNA exonerees were released from death row, leading Mann to suggest:
That’s 17 innocent people who would have been executed had DNA testing not cleared them. You have to assume there's been an innocent person somewhere who wasn’t lucky enough to have testable DNA in their case and was wrongly executed in this country—quite possibly in Texas and quite possibly Cameron Todd Willingham.
That's an excellent point about those innocent prisoners "lucky enough to have testable DNA in their case." For a variety of reasons, DNA evidence is usually unavailable. Biological evidence only exists in 10% or less of violent crime cases, meaning that DNA would be unavailable clear innocents in the other 90% of death row inmates and others convicted of violent crimes. It seems nearly inconceivable that the error rate for the other 90% would be any lower than that for those where police happened to collect DNA at the crime scene.
Further expanding the possible number of additional, unidentified innocent prisoners out there, even when biological evidence was gathered, most jurisdictions did not keep DNA from older cases and the lion's share of exonerations (certainly in Texas) come from before DNA testing was widely available.
Even more frustrating, when jurisdictions do find batches of old evidence - as in Bexar County where the San Antonio PD found more than 5,000 untested rape kits languishing in storage - they frequently choose to test only for guilt, but do nothing to identify possible innocence cases. In Dallas, after his predecessor fought DNA testing tooth and nail, District Attorney Craig Watkins famously partnered with the Innocence Project of Texas to vet old cases after they found a similar DNA cache, a move which has afforded him national acclaim. But in Bexar County, DA Susan Reed has so far refused to follow his lead.
To honor the memory of Timothy Cole and the other 250 DNA exonerees - who Mann notes collectively spent 3,160 years in prison for crimes they didn't commit - Reed should insist on vetting cases with recently discovered DNA evidence to search for the innocent instead of the guilty. So far, the San Antonio Police Department is going through the cases looking only for evidence in unsolved stranger rapes. But if prosecutors do the work, they'll have an obligation which the police do not to turn over potentially exculpatory evidence to the defense. That's why the DA, not the cops, should take the lead.
Though Reed is a Republican and Watkins a Democrat, this is not a partisan issue in any way, shape or form. (That said, if the DA remains recalcitrant, she has a Democratic challenger in the fall so I suppose it could become one.) Instead, it's a question of whether the DA will abide by the fundamental tenet of her office: To seek justice, not just convictions. Timothy Cole's memory, much less the sacrifice of thousands of years by those 250 innocent men, demands that the justice system take responsibility for its errors and not sweep them under the rug."The post can be found at:
http://gritsforbreakfast.blogspot.com/2010/03/cole-pardon-recommended-how-many-more.html
Harold Levy...hlevy15@gmail.com;
