Friday, May 28, 2010



GRITS FOR BREAKFAST; Publisher Scott Henson informs us that, "Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever else suits the author's fancy thrown in. All opinions are my own. The facts belong to everybody." Henson is, "a former journalist turned opposition researcher/political consultant, public policy researcher and blogger." The quizzical motto of the site is: "
Welcome to Texas justice: You might beat the rap, but you won't beat the ride."

"Now that the Dallas DA's conviction Integrity Unit has mostly vetted the old DNA samples, they're starting to look through possible innocence cases in cases without DNA, which are much more numerous but also harder to definitively prove," the May 23, 2010 Grits For Breakfast post begins, under the heading, "Non-DNA cases the future of innocence in Dallas, but Bexar stuck in the past."

"Here's how the story in the Dallas News by Jennifer Emily opens ("Dallas County district attorney's conviction integrity unit to focus on non-DNA cases," May 23),"
the story continues.

"It's been almost a year since the last DNA exoneree walked out of a Dallas County courtroom and into the world as a free man.

The flood of exonerations in Dallas County, where since 2001 more wrongfully convicted people have been freed through DNA testing than anywhere else in the nation, is slowing to a trickle. There are only so many cases where genetic evidence is available to test.

But the work is far from over.

The emphasis of the conviction integrity unit established by District Attorney Craig Watkins in 2007 is shifting toward challenging cases where there is no DNA to test, but where questions remain about an inmate's guilt or innocence.

Without DNA evidence, these cases require more time and can mean investigating a crime that occurred years ago as though it just happened: tracking down witnesses, comparing fingerprints to see if there is a match when one didn't exist before, seeking new evidence.

Watkins says he hopes his office can use lessons learned during years of DNA testing to improve police work. Bad witness identification, for example, has been a factor in most of Dallas' DNA exonerations. There are also several cases where prosecutors or police withheld evidence that could have prevented a conviction.

Watkins said his perspective has changed since the unit began. He's realized that it can do much more than free the innocent.

"At the time, I started out looking at legitimate claims of innocence, and obviously we still do," said Watkins. "But now, it's how can we improve prosecutor and police techniques. It's about the ability to argue for changes in the law."

This is the future of overturning wrongful convictions in Dallas County.

Really, this is the future of the innocence movement generally, certainly in Texas. For the next few years there will continue to be limits on the number of DNA exonerations for several reasons.

For starters, many convictions where DNA testing was never done happened long ago, but sentences are so long that often offenders are still locked up or on parole. Meanwhile, frequently old evidence has been long-ago been destroyed. One notable exception is a cache of 5,000 old rape kits recently discovered that were unknowingly retained by the San Antonio PD - a circumstance that's essentially similar to what happened in Dallas where a private lab happened to have kept old biological samples from several decades past. In Bexar County, though, DA Susan Reed and the police chief have said they'll only pursue DNA testing where it might prove guilt in an unsolved case. They've so far refused to rexamine old cases - as the Dallas DA did, partnering with the Innocence Project of Texas - to make sure this evidence exonerates the innocent as well as convict the guilty. (Reed has a Democratic opponent and if I had my druthers he'd make establishing a Conviction Integrity Unit a central campaign issue and hammer her on this decision.)

More broadly, biological evidence only exists in 10% or less of violent crimes, so 90% of convictions for violent offenses will never be implicated by DNA testing at all. In many more cases, DNA evidence alone isn't dispositive (e.g., a crime scene in a defendant's home would likely have their DNA there whether or not they committed the offense). The same flawed policing techniques, however - overreliance on faulty eyewitness lineups, pseudoscientific forensics, false confessions, lying informants - are used in both types of cases. There's no reason to believe the rate of proven false convictions wouldn't be 10x higher if there were a way to discover those cases with the same level of certainty as with DNA evidence.

The next big area for exonerations will be convictions based on flawed forensics. Convictions based on pseudoscientific arson experts, dog-scent lineups, and other non-scientific forensics deserve to be revisited comprehensively, following the model of Dallas' Conviction Integrity Unit.

The article also give some raw data that contributes to our understanding of the overall rate of false convictions. In all, 1.4% of cases examined resulted in exonerations, which falls squarely within the range of estimates from other sources. Writes Emily:

Of the 502 cases the Dallas County DA's office decided to examine for potential DNA testing, prosecutors tested and have the results for 50 cases. Many of those requests had been denied by the previous district attorney, Bill Hill.

So far, seven men have been exonerated through those tests and guilt has been confirmed for 28 inmates, Ware said. The remaining tests were inconclusive. Some could end up being investigated further, but others do not have other evidence to pursue.

Six cases are in testing and the conviction integrity unit is gathering DNA swabs for another half dozen.

The more than 400 cases the DA's office didn't test either had no genetic evidence or the DNA would not have proved guilt or innocence.

DNA could also be tested in a couple of cases where the inmate died. "They're not at the front of the list," Ware said. "But we're not going to rule it out."

Earlier this year, Gov. Rick Perry posthumously pardoned a Fort Worth man, Timothy Cole, after DNA showed he was wrongly convicted of a rape in Lubbock.

That 1.4% number falls squarely within the range of estimates seen previously for the rate of false convictions. Josh Marquis, a DA from Oregon once cited on the subject by Antonin Scalia from the bench, has given the lowest number I've seen: He's settled on an estimate that innocents are convicted .75% of the time. Nationally, 2.3% of defendants sentenced to death row were later exonerated; in Texas that number is 1.5%. Overall, exonerations made up 3.3% of the first thousand cases solved in Texas by DNA. (I've also argued that focusing exclusively on DNA exonerees understates innocence figures by excluding false drug war convictions; e.g., IMO the number of "innocence" cases in Dallas should include all the victims from the fake drug scandal.)

The Dallas DA's Conviction Integrity Unit number may be the best little study on this subject I've seen yet, even if it's an inadvertent one. A random cache of DNA samples are found, 502 are examined (a large enough sample for statistical validity), and 1.4% result in exonerations. If Bexar County found sustainable actual innocence claims at the same rate among the much larger batch of DNA they discovered, San Antonio conceivably might see dozens of DNA exonerations.

For that matter, if the false conviction rate overall turns out to be 1.4%, that would mean more than 2,100 actually innocent people are presently locked up in TDCJ."

The post can be found at: