Push for innocence panel is renewed
By MAX B. BAKER
Star-Telegram staff writer

S-T/Tom Pennington
James Giles shows the sex-offender card he carried before he was exonerated of a rape conviction. He was at an Innocence Project discussion Sept. 8 at Texas Wesleyan University.

A state lawmaker is making a renewed push for a Texas Innocence Commission to investigate cases of wrongful conviction after the 14th exoneration of a prison inmate by the Dallas County district attorney's office.

Sen. Rodney Ellis said he hopes the Dallas County situation will help revive his plan to create a nine-member commission to examine innocence claims, identify problems in the criminal justice system and recommend reforms. Ellis' bill creating such a commission died in this year's legislative session.

"I think the exonerations are clear and convincing evidence that the system is broken," said Ellis, a Houston Democrat. "In no other sphere of public policy would rational people see this many exonerations and not be willing to be able to pull together a panel of experts to ask what went wrong and what can be learned from those cases."

This month, Dallas County prosecutors said DNA evidence proved that Steven Phillips, who served 25 years in prison, did not rape a Dallas woman in 1982. Since 2001, Dallas County has had more DNA exonerations than any other county in the United States.

Ellis is talking to his Senate colleagues about an innocence commission. He has also asked Lt. Gov. David Dewhurst to order an interim study on the need for an innocence commission during the Legislature's hiatus.

Texas Supreme Court Chief Justice Wallace Jefferson and Ellis have also talked about reforms. Jefferson said he agrees that the state should create some type of innocence commission but added that he is still studying the issue.

"We can't open up every conviction in the state. We've got to be careful how we do this," Jefferson said. But he added that "to me, it is unthinkable that you and I would be sitting in jail for a crime we did not commit. It shows that something didn't work."

For people who have been exonerated after spending years behind bars, an innocence commission is long overdue. "We badly need some reconstruction in the criminal justice system," said James Giles of Dallas, who was exonerated last year after serving 10 years on a rape conviction. "We ought to be able to come together and get this thing right."

The details

Ellis' bill would have allowed the governor, the lieutenant governor and the speaker of the House to make appointments to the commission, among others. The commission would have had the power to investigate individual cases, identify defects in the system and suggest reforms to the Legislature.

Ellis compared the commission to the National Transportation Safety Board, which sends in teams of experts to investigate airplane crashes.

"We are talking about looking at cases where it is undeniable that the system made a mistake," said Ellis, who also serves on the board of directors of the Innocence Project in New York.

Ellis' bill passed the Senate 20-10 but failed in the House. It was opposed by the state's prosecutors, and some lawmakers said the state has adequate systems for this kind of review, including the state and federal judicial appeal process as well as the Texas Board of Pardons and Paroles.

'Prime time'

Sen. Kim Brimer, R-Fort Worth, said he voted against Ellis' bill because he didn't think that the issue had been studied enough or that the bill offered much improvement. He added, however, that it is a "prime time" to do an interim committee report on a commission.

"At that time it just looked like another level of bureaucracy to me that needed more study," Brimer said.

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is not convinced the commission is necessary, saying the state already has a progressive attitude toward innocence claims. The Court of Criminal Appeals is the state's highest criminal court.

"I think that the system is working fairly well right now and evidence of that are the exonerations in Dallas," Keller said. "I don't know what an innocence commission would add."

Six states have already created similar commissions, according to the Innocence Project in New York.

North Carolina was first when it approved an eight-member Innocence Inquiry Commission last year after several long-term inmates were exonerated. The commission has received requests to review more than 200 cases.

"It is forward-thinking for this state. People are open to watching what we give them," said Kendra Montgomery-Blinn, the commission's executive director. "It doesn't matter where you fall on the political scale, you don't want innocent people in prison."

Texas Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee, said any proposed reforms will have to be supported by stakeholders in the state's criminal justice system.

Whitmire said he is more hopeful about getting an innocence commission approved after the Dallas County exonerations. Whitmire said he will encourage Dewhurst to let legislators study the idea.

He said prosecutors and judges have expressed concern that an innocence commission would give rise to political retaliation and not an honest effort to clean up the system.

"It can't be about 'I gotcha!' It ought to be about going forward and not repeating the same mistakes," Whitmire said. Honest judges and prosecutors will welcome outside review of their cases, he said.

But clearly, after what has happened in Dallas County, Whitmire said, there is room for improvement in the criminal justice system.

"What we don't know should scare the hell out of us," he said.

Commissions across the United States

At least six other states have created innocence or criminal justice reform commissions.

California: Lawmakers created the California Commission on the Fair Administration of Justice in 2004. The 18-member agency includes prosecutors, defense attorneys and a member of the judiciary. In 2006, the commission began looking into wrongful convictions.

Connecticut: Created in 2003, the Connecticut Innocence Commission has 12 members, including a chief administrative judge, a police chief and a state representative. It does not review individual cases but adopted a broader reform mandate.

Illinois: After then-Gov. George Ryan issued a moratorium on executions in 2000, he created a commission to study capital punishment that made 85 recommendations for additional safeguards. In 2007, lawmakers considered a permanent innocence commission.

North Carolina: The Innocence Inquiry Commission, created in 2006, grew out of a study of the state's criminal justice system. It has eight members and eight alternates representing judges, prosecutors, defense attorneys and the public.

Wisconsin: After a high-profile exoneration, lawmakers created the Criminal Justice Reform Package, which produced recommendations aimed at minimizing factors in wrongful convictions, including preservation of biological evidence.

Pennsylvania: In 2006, the state Senate approved an advisory committee for wrongful prosecutions after nine DNA exonerations. The committee, with about 30 members, is scheduled to make recommendations to the Senate by 2008.

Source: The Innocence Project

Innocence commission

Under a bill sponsored by state Sens. Rodney Ellis and Leticia Van de Putte in the last session, a Texas Innocence Commission would be composed of nine members:

Two gubernatorial appointees, one of whom must be the dean of a law school and the other a law officer.

One appointee by the lieutenant governor, who may be a member of the Legislature.

One appointee by the speaker of the House, possibly a member of the Legislature.

A member of the judiciary appointed by the presiding judge of the Texas Court of Criminal Appeals.

A forensic scientist picked by the Texas Forensic Science Commission.

A prosecutor named by the Texas District and County Attorneys Association.

A criminal-defense attorney picked by the Texas Criminal Defense Lawyers Association.

An attorney with appellate experience representing one of the three innocence projects at three state law schools.

Source: Senate Bill 263

Instead they should have a "DNA Commission" with the limited duty to apply modern testing to preserved evidence.

Any cases where DNA evidence does not support the conviction would be forwarded to the Texas Board of Pardons and Paroles and they would decide if additional investigations and/or actions are warranted.

This DNA Commission would be dissolved when the back-catalog of evidence has been tested.

There are already governmental bodies that have a constitutional duty to examine criminal cases. A "commission" would strip those bodies of their constitutional authority and transfer it to a political forum, where politicians could fingerpoint and pontificate outside the limitations placed on litigation in the courtroom.

Maybe "commission" is a bad word ... I'm thinking of something not so much an organization unto itself... more of a side/sub project of the existing parole board.

From today's New York Times:

October 1, 2007
Exoneration Using DNA Brings Change in Legal System
By SOLOMON MOORE

State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.

All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used.

At least six states have created commissions to expedite cases of those wrongfully convicted or to consider changes to criminal justice procedures. One of them, the California Commission on the Fair Administration of Justice, will hold a hearing this month on remedies for people who have been wrongfully convicted.

Laws in several states, including Illinois, New Jersey and North Carolina, have bipartisan backing, with many Democrats supportive on civil rights grounds and Republicans generally hoping that tighter procedures will lead to fewer challenges of convictions.

"Technology has made a big difference," said Margaret Berger, a DNA legal expert who is on a National Academy of Sciences panel that is looking into the changing needs of forensic scientists. "We see that there are new techniques for ascertaining the truth."

Maryland, North Carolina, Vermont and West Virginia passed legislation this year to create tougher standards for the identification of suspects by witnesses, one of the most trouble-ridden procedures.

Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions.

Legislatures considered 25 witness identification bills in 17 states this year, the National Association of Criminal Defense Lawyers reported. Five states approved bills, while five states defeated them. Bills are pending in seven states.

"It's become clear that eyewitnesses are fallible," said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques.

Two states, Vermont and Maryland, passed laws this year to improve crime lab oversight to eliminate errors and omissions. Maryland recently passed a law that will hold its crime labs to the same standards as clinical labs, a much more rigorous requirement. Other legislative changes to crime lab oversight are pending in 21 states, including New York.

More than 500 local and state jurisdictions, including Alaska, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Wisconsin and the District of Columbia have adopted polices that require the recording of interrogations to help prevent false confessions, according to the Innocence Project.

The California Legislature also passed a bill this year that requires informant testimony to be corroborated before it can be heard by a jury. Critics say such testimony can be unreliable, especially when it is offered by convicts or suspects in return for leniency. The bill awaits approval by the governor.

Advocates of efforts to use DNA to exonerate those wrongfully convicted say the changes in the state laws are welcome and long overdue.

"The legislative reform movement as a result of these DNA exonerations is probably the single greatest criminal justice reform effort in the last 40 years," said Peter J. Neufeld, co-director of the Innocence Project.

But some law enforcement officials oppose some of the changes, saying they create legal minefields for the police and prosecutors. Any deviation from the new standards, no matter how minor, could be taken up by defense lawyers in an appeal, the critics say.

The California State Sheriffs� Association is fighting two bills there that would mandate electronic recording of interrogations and corroboration of informant testimony. The bills have been passed by the Legislature and are awaiting final approval by Gov. Arnold Schwarzenegger, a Republican.

"Simply put, these two bills create loopholes for defendants to get an edge in court on technicalities," according to a letter from the sheriffs� organization to the California Commission on the Fair Administration of Justice. The association also opposed a state bill that would create guidelines for suspect lineups.

Even some proponents of the new standards balk at making them state law, insisting they are better dealt with by local law enforcement agencies.

"I'm not fond of legislation," said Lieutenant Patenaude, the Massachusetts police commander. "I've been asked to review bills in several states, and I haven't seen one that mirrors the best practices that we've put out here. I'd like to see police agencies mold the procedures instead of legislatures or courts."

Studies of wrongful convictions suggest that there are thousands more innocent people in jails and prisons. The Innocence Project, the nation�s most prominent organization devoted to proving wrongful convictions, is pursuing 250 cases and at any given time is reviewing 6,000 to 10,000 additional cases for legal action. Approximately 1 percent of those cases will be accepted, and half of those accepted cases are closed because evidence has been lost or destroyed.

Other smaller efforts to overturn wrongful convictions also receive thousands of letters from inmates.

In a 2005 study, a University of Michigan Law School professor, Samuel R. Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of the wrongful murder convictions and 88 percent of the wrongful rape convictions included false eyewitness identification, the study found.

DNA evidence was used to exonerate 144 of those inmates.

In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004

Professor Gross said the total number of innocent prisoners was likely to be far higher. In his view, well-documented wrongful convictions in capital cases provided a window on systemic problems, with even larger numbers of convictions for less serious and less publicized convictions.

"Of the 340 exonerations I looked at" in the 2005 study, Professor Gross said, "96 percent are for rape and murder." He added: "Does that mean nobody was wrongfully convicted for drug possession, or drunk driving or burglary? Chances are there are many, many more false convictions for lesser crimes." The most recent prisoner to be exonerated by DNA evidence was Dwayne Allen Dail, who served 18 years in North Carolina for a false conviction of child rape. Prosecutors had used the victim's identification of Mr. Dail and hair found at the crime scene to convict him. Years later, after repeated inquires from defense lawyers, the police found a box of additional evidence in the case that contained the victim�s semen-stained nightgown. DNA analysis ruled out Mr. Dail and implicated another man. Mr. Dail was released from prison in August.

The proposed laws on witness identification are intended to reduce cases like Mr. Dail�s by requiring things like sequential photo lineups of suspects, in which police officers show witnesses photographs of one suspect at a time. Studies have shown that witnesses tend to compare photos when they are shown them simultaneously, a tendency that can lead to errors.

The legislation would also create "double blind" systems so that the police officers administering the photo lineups are unaware of the suspects' identities in order to avoid influencing witnesses.

The North Carolina legislature adopted both lineup procedures this year.

Crimes labs are also getting additional scrutiny in some states.

William E. Marbaker, president of the American Society of Crime Lab Directors, an independent accreditation body, said the group had accredited more than 300 crime labs. But some law enforcement agencies are finding that even more oversight is needed.

A two-year review of the Houston Police Department's crime lab called into question more than 600 cases. The review was initiated after a court found in 2005 that faulty forensic evidence led to the conviction of George Rodriguez in 1987 for kidnapping and assaulting a child. Mr. Rodriguez served 17 years of a 60-year sentence before his release two years ago.

Houston crime lab officials erroneously concluded that hair found at the crime scene belonged to Mr. Rodriguez. The crime lab also failed to rule out Mr. Rodriguez as a suspect after finding that semen collected from the scene matched that of another man.

Eight states - Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming - do not have laws that give inmates access to DNA evidence.

Advocacy groups, including the Innocence Project, said they intend to lobby for the passage of access laws in those states during the next legislative session.

You know, the problem is that there is no perfect criminal case. Unless we get to a point in which there are cameras constantly watching our every move in society, there are bound to be verdicts inconsistent with the truth (note I didn't say "inconsistent with the evidence"). That goes both ways, by the way; wouldn't we love to get a second bite at the apple for the guilty who are acquitted! We do the best we can with limited resources. I think that escapes the attention of a lot of people, because "the best we can" sounds a whole lot like an excuse rather than the heartfelt truth it's meant to convey. We obviously want to convict truly guilty people, but I don't think there is any way to make it an absolutely perfect system.

So, did I meet you in Corpus, RTC?

When science reveals evidence inconsistent with a verdict it just means that we know more now than we did back then.

If the wrong guy was convicted it's a shame but that doesn't mean the people in the criminal justice system didn't do the best they could with the available information. Thats all anyone can ask.

To follow the logic of the voices of radical change, we should be keeping track of any disastrous legislation filed and passed. And, then, we could justify setting up a "commission" to oversee how legislation is written and passed. The "commission" would publicly investigate and debate whether legislators did their job. Hmm. Wonder how that would work out?

Oct. 4, 2007, 6:39AM
Mix-up on DNA deals HPD lab another blow
Man exonerated 14 years after rape conviction


By MIKE TOLSON and ROMA KHANNA
Copyright 2007 Houston Chronicle

Few people listened when Ronald Gene Taylor declared himself innocent of a rape charge 14 years ago. But the Harris County District Attorney's Office finally agreed with him Wednesday, acknowledging that the scandal-plagued Houston Police Department crime lab was responsible for sending yet another wrong person to prison.

Incarcerated since being picked out of a lineup in June 1993, Taylor was exonerated by new DNA testing this summer that showed another man was guilty of the crime. Harris County District Attorney Chuck Rosenthal said he was sickened when he got the news late last week of the wrongful conviction.

"I feel awful," Rosenthal said. "Nobody wants to have an innocent person wrongfully convicted and sent to prison. It's a very regrettable thing."

The exoneration of the 47-year-old Taylor is another blow to the tattered reputation of the Houston Police Department crime lab, which has been rocked by scandal in recent years over the reliability of its testing and quality controls.

Rosenthal said he will work quickly toward Taylor's release and pardon. A hearing before state District Judge Denise Collins is scheduled for Oct. 12. Collins could release him on a personal recognizance bond at that time.


Lived near crime scene

The testing was done at the request of the Innocence Project, a New York-based legal clinic that assists prisoners in getting DNA evidence reviewed. It has worked on the case since 1998, when it was contacted by Taylor's stepfather, who was pressing his son's claim of innocence.

The HPD crime lab originally reported that a bed sheet it tested did not contain semen, a conclusion that led an appeals judge to deny a request for additional testing. Absent conclusive forensic evidence, Taylor's conviction was based on an eyewitness identification by the victim and the fact that he lived nearby.

New tests on the sheet, done this summer by ReliaGene Technologies, yielded the DNA profile not of Taylor but another convicted sex offender serving time in Texas prisons. The statute of limitations for prosecuting that case has expired, Rosenthal said.

Rosenthal said the victim's bad ID was understandable.

"The two men are remarkably similar in appearance," he said. "One can see how a mistake in identification can be made."


Fleeting glimpse, in dark

According to Taylor's lawyers, the victim never got a good look at her attacker. She felt some of his features and saw him briefly as he was fleeing her apartment. That glimpse came in a dark room lit only by a nearby street light.

She viewed the lineup in the presence of one police officer without witnesses or attorneys for the defendant, Taylor's lawyers claim. While watching the video, the victim suddenly recalled that the perpetrator had a tooth missing � not part of her initial description � and she identified Taylor, who had been placed in the lineup because a neighbor interviewed by police recalled seeing him in the area the night of the assault.

The Innocence Project has been critical of convictions based primarily on eyewitness identification by strangers. Bolstered by numerous studies that show the fallibility of such IDs, it has called for major changes in the ways police departments present lineups to crime victims.

Taylor, the eldest of five children who were raised near Huntsville, had moved to Houston about six months before the May 1993 attack in which he was accused, according to his mother, Dorothy Henderson.

"We had concerns from the beginning that this was a case of mistaken identification," said Shelton Sparks, the attorney who handled Taylor's appeal. "But we did not pursue DNA testing because we did not believe there was any evidence to be tested based on the (HPD analyst's) testimony at trial."


Family didn't give up

As Taylor served his sentence in a prison in Tennessee Colony, his family worked to prove he had been wrongly convicted. They got lucky when the Innocence Project agreed to take on the case.

"He always said that he was innocent, and I kept the faith that one day it would come through that it was not him," Henderson said. "We have suffered so much, but soon, now, when I can hug him and know that he is free, we will have peace."

Henderson plans to attend next week's court hearing, after which she hopes to take him home to Huntsville "for a home-cooked meal."

Assistant District Attorney Jack Roady said he will work with Innocence Project lawyers to agree on findings of fact to present to Collins. If she signs off on them, Taylor's habeas corpus petition will be presented to the Texas Court of Criminal Appeals for final action.

Assuming Taylor is granted a pardon based on innocence, he would be eligible for compensation from the state at a rate of $50,000 per year of incarceration, for a total of $600,000 or more.

Taylor's is the third conviction to crumble since scrutiny of work from the Houston crime lab began late in 2002 after news reports and an audit exposed poorly trained personnel and inaccurate work in the DNA division. Two other men were released from prison after new DNA tests discredited HPD's analyses.

Josiah Sutton was released from prison in March 2003 when DNA tests challenged the HPD work that helped secure his conviction in a 1998 rape. Sutton received a pardon on the basis of innocence and the state has compensated him with more than $118,000 for the time he served.

George Rodriguez served more than 17 years in prison in the 1987 rape of a 14-year-old girl before new forensic evidence discredited the HPD crime lab work on his case and led prosecutors to dismiss the case against him.

Since HPD's crime lab problems first came to light, errors have been found in several types of analyses, including those of firearms and of controlled substances, casting doubt on thousands of convictions and unsettling the local justice system.

Faulty evidence in the cases against Rodriguez and Taylor included serology, the science of typing body fluids that was a precursor to DNA testing.

Independent investigators who studied the crime lab over 26 months and issued a final report in June have called the work of the HPD serology division among the most troubling and problematic work from the crime lab.

Their scientists identified about 180 cases in which HPD serology work had "major issues" and called for a review of those cases to determine whether the forensic evidence played an essential role in securing convictions. Taylor's case was not among those highlighted in the report.

The serologist who handled Taylor's case worked in the lab from 1993 until 1996.


Call for systematic review

The investigative team recommended the appointment of an independent "special master" to review those cases. Local officials rejected the proposal. Instead, HPD and the district attorney's office have begun their own reviews of those cases.

Barry Scheck, a founder of the Innocence Project, said Taylor's case should highlight the need for a systematic review.

"The Ronald Taylor case ought to be a galvanizing example of what has to be done to correct the historical injustices that have occurred because of the Houston crime lab," Scheck said.

Scheck, other lawyers and local elected officials have begun working on a proposal to form a panel of lawyers to review these cases. Rosenthal was receptive to the idea of such a panel, Scheck said, and the lawyers have contacted the presiding judge over Harris County's courts, state District Judge Debbie Mantooth Stricklin, about how to proceed with the proposal.

"There has got to be an expeditious way to go through these cases and determine whether more testing is possible and appropriate," Scheck said. "That sort of vetting requires expertise, competence and an infrastructure to do that."

quote:

---

"I feel awful," Rosenthal said. "Nobody wants to have an innocent person wrongfully convicted and sent to prison. It's a very regrettable thing."

---

Logically he knows that his office was doing its best to seek justice with the best available evidence. Emotionally? I'm not sure.

The prosecutors I've met seem driven my a higher sense of "doing the right thing." While there are certainly other do-gooder jobs (firemen, teacher, doctor etc.) I can't think of another profession whose members willingly slash their own potential salary in exchange for public duty and the honor of wearing the white hat. I wouldn't be suprised to learn that a DA was upset about one of these cases even though logically he knows it isn't his fault. These are only my personal observations. Your mileage may vary.

You hit the nail on the head, Alex. And what other profession really gets slaughtered by the media quite as much as prosecutors/law enforcement? Not only do we wear the white hat, but we are so very publicly NOT appreciated for doing it. Thank you for your kind words.

I am shocked -- shocked! -- that political calculations have entered into the consideration of repealing the death penalty ...

----------------------------------------

Fairness of death-penalty panels questioned

By John Gramlich, Stateline.org Staff Writer
Friday, May 02, 2008

Death-penalty supporters are raising questions about the fairness of state commissions charged with studying how capital punishment is carried out in Maryland and Tennessee, claiming the panels will issue reports that ignore their views.

Debates erupted in both states last month as lawmakers moved ahead with plans to examine the death penalty in detail to determine whether it is being applied justly and in a worthwhile manner in each state. Maryland legislators agreed to set up a new study panel, while Tennessee is considering extending the study period for an existing review panel.

Critics in the two states say the study commissions are structured to include too many appointees who will make recommendations to end capital punishment and are designed to buy time and political cover for lawmakers who want to repeal the death penalty.

Full article available HERE.