Exoneration Integrity

Recently, the Ohio Innocence Project announced a triple exoneration of their client Ricky Jackson and his codefendants Terry Gilbert and David Mills, former death row inmates who spent nearly 40 years in prison for a crime they didn’t commit. Their convictions were based on the testimony of a then-12-year-old boy who recanted decades later. The case is reminiscent of Center on Wrongful Convictions client Jacques Rivera, who was likewise exonerated after the sole witness against him, a then-12-year-old boy, similarly recanted decades later.

In the Ricky Jackson case, prosecutors voluntarily dismissed charges last month after the recanting witness finished testifying. What they did this month, though, is even more astonishing and laudable. On December 9, 2014, Cuyahoga County Prosecutor Timothy J. McGinty filed a “notice of intent” document in the Court of Common Pleas intended to expedite the process of qualifying the three men for state compensation. In pertinent part, the notice states:

“[T]he Cuyahoga County Prosecutor has no evidence tying any of the three convicted defendants to the crimes, considers the defendants innocent, and joins in the defense motions to declare them so.  They have been victims of a terrible injustice. In order to further justice and to avoid the unnecessary accumulation of attorney’s fees on behalf of the defendants, it is the Cuyahoga County Prosecutor’s position not to oppose the anticipated wrongful imprisonment claims.”

In October 2014, the Center on Wrongful Convictions hosted a Conviction Integrity Conference, which addressed prosecutors’ efforts to take matters into their own hands and address wrongful convictions from inside their offices. Jose Torres, the head of the Cuyahoga County Prosecutor’s Conviction Integrity Unit, was a panelist at the conference. It is to be hoped that the courageous and compassionate action by his office in the Ricky Jackson case will motivate other prosecutors to affirmatively pave the way for speedy declarations of innocence and state compensation after the dismissal of charges against innocent persons who have served time in prison.

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The Next Stage in the Innocence Movement

When we first envisioned hosting a conference exploring prosecutor-initiated Conviction Integrity Units, I remember feeling that we should think big. I thought this type of conference had the potential to have wide interest both locally and nationally. I was hoping the project would be a collaboration of sorts – an open discussion from a variety of perspectives toward the shared goal of ensuring that the wrongfully convicted are correctly identified. I even remember noting to some friends: I probably have “delusions of grandeur,” but I think this could be a big deal.

As I think back on those first visions, I can’t help but smile. We did it! And you know what – I think it was a big deal!  As the emails, CLE written comments, and other reflections from friends and attendees have started to pour in, I think others have recognized that it was a big deal as well. It is hard to please what Karen Daniel aptly described as such a diverse audience in her previous blog post and opening statements to the event, but we seemed to have pulled it off. Overwhelmingly, attendees and panelists not only praised the conference, but so many relayed how they very much hope this is just the beginning of a larger movement toward collaboration on these issues:  “Let’s build on this moment,” was a common refrain.

And I agree – Let’s build on this moment. I believe more collaboration – more strange bedfellows, so to speak, is the logical next step in the innocence movement. It is clear to me, after hearing national prosecution leaders like Brooklyn District Attorney Kenneth Thompson, Harvard Law Professor Ron Sullivan, Dallas County prosecutor Russell Wilson, and Association of Prosecuting Attorneys President David Labahn; emerging voices and leaders like Cuyahoga County District Attorney Jose Torres and Santa Clara County prosecutor David Angel; local prosecutors like Anita Alvarez and Michael Nerheim who are listening and care about these issues; and the so many other prosecutors and others (over 400 people) who came and listened at the conference, that the time is now for this type of collaboration. With visionary defense leaders like Innocence Network President Keith Findley and CWC co-legal Directors Karen Daniel and Jane Raley embracing this potential, I feel even more confident.

Ultimately, the conference taught me that the issues in this type of collaboration going forward are not uncomplicated or easily overcome. But the potential for real reform and a better criminal justice system means we should embrace these challenges moving forward.

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Conviction Integrity Conference

Our Conviction Integrity Conference (October 29, 2014) is in the books. The conference program and CLE materials will be available for a bit longer here. Over 400 people registered for the conference and saw 7 top prosecutors discuss the hows and whys of their conviction integrity units, as well as a diverse set of speakers stressing the need for conviction integrity review and a panel of experts explaining common causes of wrongful convictions. We were incredibly pleased with how it all went, and we hope to make videotapes of the panels available to those who were unable to attend.

Below is an adapted version my opening remarks for the conference.

WHY THIS CONFERENCE

Thank you for being here. When we at the Center on Wrongful Convictions (CWC) conceived this conference about a year ago, we were intrigued by the formation of so-called Conviction Integrity Units (CIUs) in prosecutors’ offices. There were two relatively new CIUs in Illinois – here in Cook County and up in Lake County – and a handful of others we knew about around the country that were doing very visible work. We wanted to learn about how these units were being set up, and we felt we could contribute to the conversation because, after all, we have been reviewing wrongful conviction claims for 15 years.

Today, this conference could not be better timed. There are now roughly 20 CIUs nationwide, some of which were formed this year. Likewise, we keep reading about convictions that have been vacated as a result of the hard work of CIUs – including two just yesterday in Dallas and two earlier this month in Brooklyn. Representatives from both of those offices are here today.

HISTORICAL CONTEXT

What is going on here? Why this CIU fever? Well, if you think about it, it is part of a continuum that began in 1989, the year of the very first DNA-based exoneration, that of Gary Dotson here in Illinois.

Following that, the 1990s saw a dramatic rise in DNA testing as a means of proving both guilt and innocence, and a much broader awareness of the prevalence of wrongful convictions. In response, defense-based projects formed that focused on representing people with innocence claims. By the year 2000 there were already 10, including the CWC, and today there are 56 such projects. In that same period, from 1989 through today, the National Registry of Exonerations recorded 1,465 exonerations. Most of these, I might add, were not based on DNA evidence. As these wrongful convictions were discovered, we learned things. It turns out that not all confessions are true, not all eyewitness identifications are accurate, not all scientific testimony is valid, and the adversary system does not always reveal the truth. Many times it does, but not always. Those of us in the CWC and other projects talked a lot about these issues, often rather loudly. We frequently felt we weren’t be being heard by the people who mattered.

But obviously, many prosecutors were listening. Starting with Dallas County in 2007, and gaining momentum in this decade, we have begun seeing formalized conviction review units within prosecutors’ offices. Some of these units also work on developing best practices to avoid future wrongful convictions. Maybe 20 isn’t a huge number, but this growing trend represents the very best impulses of those who work in the criminal justice system.

THIS AUDIENCE

Which brings me to you all. This is, easily, the most “diverse” audience of any CWC event we’ve ever hosted – “diverse” in the sense of your differing roles in the criminal justice system. Look around you, and you may see:

  • Prosecutors from county, state, and federal offices
  • Public defenders on both trial and appellate levels
  • The private defense bar
  • Attorneys whose work focuses on wrongful convictions
  • The civil bar, including, attorneys who work on both sides of civil rights litigation
  • Police officers, other law enforcement investigators, and private investigators
  • The judiciary is represented in this room
  • Persons who have been wrongfully convicted, and crime victims, are also represented
  • Professors and students – after all, this is a law school
  • And last but not least, interested members of the public

WHAT WE HOPE TO ACCOMPLISH TODAY

Just by getting you all in the same room together, we have accomplished one of the goals of the conference. Will we all agree on everything? Of course not. Everyone here has a critical, but distinct, role in the process. You won’t agree with all of today’s panelists, and they won’t all agree with each other. But the other goal here is to take time out from the day-to-day grind, in an atmosphere of mutual respect, and learn from each other and perhaps gain some new perspectives. That being said, I believe I can safely say that everyone in this room does agree on this: people should not go to prison, or remain in prison, for crimes they didn’t commit. That’s what brings us together today – that, and 3.5 hours of CLE credit.

On a personal note, I am certainly very proud of my job and my organization, but the folks in this room I have tremendous respect for are the ones working on the front lines, day in and day out, investigating crimes, bringing dangerous criminals to justice – and to balance that out, testing and challenging that very same evidence, and ensuring that due process, individual liberties, and other important safeguards of justice are observed. I am also very gratified that the CWC is well on the way to achieving an improved working relationship with our local prosecutor’s office and with other offices around the country. This benefits not only our clients, but the criminal justice system as a whole.

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Reflections on a (fictional) exoneration

Last night I went to see “At the Center,” a new play by Andrew Gallant and Tim Touhy that is lovingly based on the work of the Center on Wrongful Convictions. As an aside, it was a bit surreal to observe someone else’s conception of the CWC’s work played out before me onstage.

Oddly, the scene that most stayed with me was the press conference after the exoneration. The CWC attorney spoke from a podium and made the usual remarks about it being both a happy and a tragic day and about the need for systemic reforms. Smiling law students and the exoneree’s sister stood on either side. I could imagine cameras snapping and reporters scribbling in the audience. I have been through a few of these moments myself.

The person I couldn’t stop watching was the exoneree—or rather, the actor who played him. The portrayal was spot on. His half-smiling (only half!) expression included apprehension, self-consciousness, and deep loss. The body language was so powerful that I can’t even remember his words.

Behind lies pain. Ahead lies uncertainty. The fleeting moment between, in the spotlight of exoneration, contains elements of both, plus joy and a host of other emotions that vary from person to person. The moment does matter. It presents an opportunity to capture hearts, and capturing hearts drives change. It also validates the exoneree’s innocence and the injustice he or she has endured, which is tremendously affirming. But it is just a moment, and by no means the end of the story or even its most important chapter. That reminder is my takeaway from “At the Center.”

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Lineup reform on the horizon in Illinois?

Having worked on numerous wrongful conviction cases caused by misidentifications, I am quite interested in lineup reform efforts, especially in Illinois. Mistaken eyewitness identifications are at or near the top of the list of causes of wrongful convictions. Yet many identification “mistakes” are avoidable.

It doesn’t take a rocket scientist—or even a social scientist—to figure out that if the police officer running a lineup doesn’t know who the suspect is, the officer can’t make improper suggestions to the witness (either accidentally or on purpose) about who to identify. Nonetheless, “blind administration” of lineups is still the exception rather than the rule.

That could soon change, at least in Illinois.

House Bill 802, sponsored by two former prosecutors (State Representative Scott Drury and State Senator Kwame Raoul), sailed through the General Assembly and is awaiting Governor Quinn’s signature. If the Governor does nothing, the bill will become law on August 25, 2014. House Bill 802 contains several provisions designed to increase the accuracy of identifications. One key requirement is that lineups be run by “independent administrators” when possible, and when not possible, that police use a method whereby the officer running the lineup cannot see which photographs or individuals the witness is viewing until after the lineup is over. This will help prevent suggestiveness from creeping into the procedure.

Another critical feature of the legislation is that physical and photo lineups are to be videotaped—again, where practical. Thus, we can expect to see a dramatic reduction of “he said-she said” disputes (usually between officers and defendants) over what actually happened during the lineup. Did the officer tap her finger on the photo of the suspect, or didn’t she? If the procedure is videotaped, the answer will no longer be in doubt. This should benefit law enforcement by reducing the number of claims of misconduct against police officers—just like videotaping police interrogations has lowered the number of claims of coerced confessions.

Assuming Illinois House Bill 802 becomes law, I am hoping that it is the first in a series of improvements to identification procedures that will make crime investigation more accurate and fair to all. An added bonus is that it will allow my colleague Josh Tepfer to check off #4 of his 2014 Criminal Justice Resolutions.

Update: The bill was signed into law on August 22, 2014, as Public Act 98-1014, effective January 1, 2015. It will be worthwhile to follow its implementation.

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