Tuesday, July 24, 2012

Smugness unwarranted in counties with low DNA exoneration totals

I groaned upon readong Bob Ray Sanders' Sunday column in the Fort Worth Star-Telegram purporting to explain "Why Tarrant County has many fewer exonerations than Dallas County." In a journalistic spasm of parochial jingoism, Sanders quoted a local prosecutor claiming that Tarrant's superior open file system and more conscientious prosecutors explain why Tarrant has seen just one DNA exoneration compared to Dallas' 32 since 2001.

Grits was thankful, then, that Leslie Minora at the Dallas Observer beat me to rebutting Sanders' argument, following up with an article seeking "the real reason" for the difference. For that purpose, she called up a pair of attorneys who, in the interest of full disclosure, are on the executive committee at my employer, the Innocence Project of Texas:
Mike Ware, a Fort Worth criminal defense attorney who lead the Conviction Integrity Unit in the Dallas County District Attorney's office until last year, doesn't feel the Star-Telegram's conclusion that open files explain lack of exonerations is well-supported. "He just doesn't have near enough information to reach that conclusion," Ware says.

The writer of the Star-Telegram piece deduces that stewards of criminal justice in Tarrant County can rest easy: "[I]t's good to know there have long been procedures in place that helped prevent many of the horrendous miscarriages of justice we've seen in Dallas and other places around the state."

That seems patently ridiculous to Jeff Blackburn, an Amarillo criminal defense attorney and chief counsel to the Innocence Project of Texas.
I sent Blackburn the link and asked for his thoughts as someone who's handled innocence cases around the state.

His response: "That's baloney, and awfully smug. How about a call."

He says the discrepancy between the number of people exonerated in Tarrant County and Dallas County isn't due to the system that locked them up but to the system that's freeing them. In many cases, Tarrant County doesn't have the biological evidence to test, Blackburn and Ware both point out. Dallas does, has for decades.
That last point is perhaps the most important: Dallas has identified more false convictions than Tarrant for the same reason the guy with a metal detector on the beach is more likely than me to find buried treasure: He's looking for it. Dallas partnered with the Innocence Project of Texas to set up a system to vet potential false convictions, while most other counties (besides Harris) tend to react defensively to the possibility and fly by the seat of their pants instead of submitting the cases through a well-defined vetting process.

Grits agrees Tarrant's open file policy represents the gold standard among Texas prosecutors, but no one should get carried away by that to reach the conclusion Sanders posits. After all, prosecutor misconduct isn't a factor in every exoneration (ahout a quarter of them), and where it happens often other factors combine to produce error, much in the way that airline crashes are often found to result from a combination of events and seldom a single, fatal mistake.

And it should be mentioned that, despite Tarrant County's open-file policy, their prosecutors sometimes violate it, including in high-profile capital cases. Pride, perhaps, is warranted over their open-file policy, but hardly smugness nor conceit. If prosecutor misconduct only occurred in a quarter of Texas exonerations, does it makes sense to attribute the entire difference to that policy? After all, most exonerations come after an eyewitness erroneously identifies someone: How would an open-file policy prevent that?

Also, Sanders quoted stats on DNA requests which had been opposed by the DA's office and denied, implying all of them were false innocence claims. But he failed to point out that many of the Dallas exonerees - not to mention others like Michael Morton in Williamson County - had prosecutors successfully oppose testing for years before their innocence was proven. Indeed, that's why the Texas Legislature changed its post-conviction DNA testing statute last year to limit the grounds on which prosecutors may object to testing probative evidence. Just because the prosecution successfully opposed DNA testing under the old law doesn't mean that none of those cases would have resulted in exonerations. It just means the evidence hasn't been tested yet.

Finally, let's be clear: Even in Dallas only a small fraction of false convictions have been uncovered, as most of them have resulted from testing old DNA evidence. But probative DNA exists only in about 10% of violent crimes, meaning in 90% or so of such cases that avenue for exoneration is irrevocably closed. And in counties like Tarrant (and the rest of the state, besides Dallas) which did not retain most DNA evidence from old cases, the chances an innocent person might be exonerated decline even further because exculpatory evidence wasn't kept.

The number of DNA exonerations in recent years should not be viewed as a "total" but as a "sample," the way pollsters sample public opinion. They give us enough data to discuss causes of false convictions, but it's hubris to point to the mere absence of evidence and claim "the system works," which is the gist of Sanders' thesis.

Those interested in these debates should read Sanders' whole piece and Minora's retort. Between them they cover the ground pretty well, and I'm particularly pleased Minora did the followup so Grits didn't have to. :)


Anonymous said...

I'd be curious to know Tarrant County criminal defense lawyers feel about this topic. I do know that the Tarrant County DA's office has been one of the most progressive in the state in terms of allowing defense access to their files. They've set up a pretty impressive online discovery program where defense lawyers can view the prosecution's files via the internet. Seems to me they've been trying pretty hard to be transparent.

Gritsforbreakfast said...

FWIW, 9:47, Mike Ware quoted in the story is both a long-time Fort Worth criminal defense attorney AND the former head of Dallas' conviction integrity unit. So he has plenty of first-hand experience with Tarrant's open file policy.

You can be completely "transparent" and still falsely convict someone based on, e.g, erroneous eyewitness testimony. Pretending an open-file policy solves the problem is hubris: Brady violations are a big issue, but not (by far) trhe only one causing false convictions.

Anonymous said...

I think if the DA's office in Tarrant County is being transparent, there's not a lot more that they can do. Ultimately, false allegations and erroneous eyewitness identifications will occur. Hopefully, if law enforcement in that county implements the new eyewitness identification protocols correctly, the likelihood of bad identifications will diminish some. If your goal is to completely prevent any possibility of wrongful convictions, there are lots of other components of the criminal justice system which will have to work perfectly, i.e., law enforcement, prosecution, defense attorneys, the courts (both trial and appellate) and the jury system. But I certainly don't think it's "hubris" for the Tarrant County DA's office to suggest that their office is doing a good job in reducing the likelihood of bad outcomes. This doesn't appear to have been some self promoting press release issued by their office. How about giving at least a little credit where credit is due instead of your typically reflexive criticism of prosecutors?

Gritsforbreakfast said...

"I think if the DA's office in Tarrant County is being transparent, there's not a lot more that they can do."

It's a good thing Craig Watkins in Dallas didn't think that way or all those innocent fellows would still be in prison.

sunray's wench said...

Exonerations rely on being able to get back into court to bring new evidence. That appears to be an enormously difficult thing to do in ANY county, and would have a bearing on the numbers of those later found not guilty.

Thomas R. Griffith said...

Hey Grits, I wonder if the 1 to 32 count is tied directly to prosecutors blocking DNA testing, Full Pardons - for innocence denials & evidence being 'lost'? Thanks.

*the old "If it (claim) isn't vetted, it didn't happen" trick.

Anonymous said...

If Tarrant County's Open File policy is the "Gold Standard," heaven help us all. I've run that policy past two legal ethics gurus who said that it was not something that an ethical defense lawyer could possibly sign. It prevents the defense letting a client from keeping a copy of any discovery materials (I know there are practical arguments why people don't find that a problem, but the client's file is the client's file and once a lawyer puts discovery materials in the file, they cannot ethically withhold them from the client). And it allows the DA's office to demand the return of the discovery materials on demand, and for no stated reason. It precludes the defense from using the Public Information Act to request any material connected with the case. And it makes the "defense lawyer" a "constructive trustee" for the prosecution, obliged to return that file on demand. Which demand seems to happen upon the institution of post-conviction proceedings by the client challenging his/her conviction. So some defense lawyers LOVE it because it allows them to keep the client's file from the former client now attacking that lawyer's performance. Please don't fall for the rhetoric, Grits. The "Open File" policy is a charade.