EFFORT TO WORK ON INMATE'S BEHALF

By MAX B. BAKER
STAR-TELEGRAM STAFF WRITER

FORT WORTH -- Saying there is "plenty of injustice and false conviction in North Texas," defense lawyers are joining forces with faculty and students from six universities in the North Texas Innocence Project, which will investigate Texas prison inmates' claims.

Led by Fort Worth lawyer Mike Ware, the program will review cases from inmates convicted in Tarrant, Dallas and other North Texas counties. Once a claim is considered valid, there will be an extensive follow-up investigation and, in some instances, litigation, Ware said.
"I think there are a lot of problems with the system, and I think this is one way to correct it," Ware said. "I'm not maintaining the prisons are full of innocent people, because they are not. But if it is one-half of 1 percent, that's a lot of innocent people."

The project will be based primarily at the University of Texas at Arlington and the Texas Wesleyan University School of Law, with 40 criminal-justice and law-school students working with lawyers on the cases.

The UT-Arlington students, who have been meeting for almost a year, have identified a murder in Tyler, a sexual assault in Dallas and a robbery in Fort Worth for further review.

Under the direction of licensed lawyers, the local students will work with law students from Texas Tech University, Texas Southern University and the University of Houston as well as journalism students from the University of St. Thomas in Houston.

"I think there is a need for it because people need to have confidence that the system works," said John Stickels, a criminal justice professor at UT-Arlington and a former prosecutor. "And there needs to be an organization that looks at the cases that fall through the cracks."

About a year ago, the Texas Court of Criminal Appeals, often criticized for being indifferent to the claims of wrongful prosecution by prison inmates, joined in the push to create an innocence network that would use law students to investigate cases. At the court's urging, the Texas Legislature set aside $800,000 over the next two years to support innocence projects at four Texas law schools.

The law schools at the University of Houston, the University of Texas, Texas Tech and Texas Southern will get $200,000 each over the next two years.

Stickels started an innocence project at UT-Arlington last year, but because it was unconnected with a law school, it did not receive state assistance. The fledgling group reviewed cases during the past school year, but Stickels said it needed the support and expertise of the established groups at the other universities.

The University of Houston students will probably initially review requests, sending letters and questionnaires back to the inmates and helping cull cases for more extensive review, Stickels said.

The Texas Innocence Network at the University of Houston Law Center began in 2000 and has processed more than 6,000 requests for assistance. As a result of its work, two inmates have been released, and a half-dozen requests for clemency or new trials are pending.
UH students have been working with journalism students at St. Thomas University and Lamar University in Beaumont.

Morris Overstreet, a former Texas Court of Criminal Appeals judge, directs the innocence project at Texas Southern, and lawyer Jeff Blackburn, who helped represent the more than 40 people wrongfully accused of drug charges in Tulia, is the director at the Texas Tech School of Law. "It is clear from the casual observer that there is plenty of injustice and false conviction in North Texas," Blackburn said.

Having Ware direct the North Texas Innocence Project was key to getting it off the ground, Blackburn said. Ware, a top criminal-defense lawyer who has practiced law since 1983, has handled a number of high-profile cases.
"This is a special deal," Ware said. "When we are acting on behalf of one of these guys, we are not wearing our criminal-defense-attorney hats; we are trying to get at the truth."

Tarrant County District Attorney Tim Curry said he does not object to the innocence network. He said that the work of such projects depends greatly on the person running them and that he respects Ware. "If in fact such people are actually innocent, you can't argue against that. Nobody can," Curry said.

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"It is clear from the casual observer that there is plenty of injustice and false conviction in North Texas," Blackburn said.

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Every time I want to give these folks the benefit of the doubt, one of them says something like this and makes me ticked off.

I share your irritation, Shannon.

I don't think any prosecutor disagrees with the fundamental concept that the innocent should be released from any wrongful conviction. However, I do not believe that is the underlying motive of those who create and push an "Innocence" project. (Would defense attorneys and law professors feel comfortable if we called our successful prosecutions "Guilt" Projects?)

The true motives are revealed in their comments that seek to belittle everyone but themselves, portraying the government as some uncaring, monolithic giant of injustice. Exaggeration seems to be the only common factor among the projects. Exaggerate the problem to tear down the opposition and to create a hysterical claim for funds.

It would be interesting to see if any other organization would stand up to such a ridiculous standard. First, you have to operate in the realm of perfection. No mistakes are tolerated; any mistakes are an indication of a broken, corrupt system. (I imagine that same standard does not apply to their own projects, which undoubtedly make claims of innocence by the hundreds that prove to be false. Hmm, wonder if the projects would be willing to disclose their "wrongful" claims of innocence and study them as failures.)

I also am irritated by the notion that only some new, nongovernmental entity can study and identify innocence. Prosecutors and grand juries, as a matter of fact and law, conduct such a study every single day. They regularly identify and refuse to prosecute, dismiss or no bill such cases. Perhaps we simply need to remind the public and such projects of our governmental function and ethical obligation to do such studies.

Finally, these projects also have an underlying motive to abolish the death penalty. Having recognized that sheer opposition on principled, moral grounds won't do (as the public simply doesn't agree with that position), they have adopted the forumula of proving a mistake that then, ipso facto, means the death penalty can't be used as a punishment.

Again, no human organization would stand up to such a formula. You couldn't drive a car, take a flu shot, fly in a plane, work in a building, live by a beach, go to New Orleans or do the millions of other human activities that involve risk of death.

Now, having said all that, I do believe there are some very good, balanced people working on these projects. I have found them to be sincerely interested in allowing prosecutors, at their request, to study a case and come to a rational decision about innocence. Unfortunately, that is the minority and will continue to be so until the public and prosecutors take control of the system they were elected to run.

Bexar County DA Susan Reed is doing a great job for prosecutors in San Antonio with the claim in the Cantu case. She has shown how an elected DA should not simply allow a project to dictate the method or outcome for such a claim.

John B said: Hmm, wonder if the projects would be willing to disclose their "wrongful" claims of innocence and study them as failures

Well, if there's government money spent on it, there should be an organization that audits they're spending, right? What group has oversight or monitors the spending for this sort of 'grant program'? Is there one? If not, we should find a way to suggest the creation of one.

Shannon: I agree. The rhetoric of a fingernail on a chalkboard will always undermine a good idea. The problem with this idea will be the execution by those sorts of people that will gravitate to the issue.

Good post, JB. Shannon, I am right there with you...The folks who run these projects seem unable to resist over-the-top statements.

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The Texas Innocence Network at the University of Houston Law Center began in 2000 and has processed more than 6,000 requests for assistance. As a result of its work, two inmates have been released, and a half-dozen requests for clemency or new trials are pending.

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Since when do requests for clemency have anything to do with actual innocence? Did the Leg. appropriate 800K to fund such requests?

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"I think there are a lot of problems with the system, and I think this is one way to correct it," Ware said. "I'm not maintaining the prisons are full of innocent people, because they are not. But if it is one-half of 1 percent, that's a lot of innocent people."

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In Houston, at least, preliminary numbers show the percentage to be more like one-tenth of one percent.

Lastly, how is it that the "system" is broken if that same "system" is the mechanism for release? To demand perfection, as JB points out, is absurd. When a city or state undertake to construct a dam or tunnel or what have you, the actuaries can tell us how many workers are likely to die in the constructtion. The projects move forward and the managers try their darndest to limit loss of life. Similarly, this criminal justice system is a human endeavor; the thing did not come from from the mountain. Every innocent person in prison should be freed now, no doubt. I have no problem with ethically run programs like these. I do worry about the sky-is-falling mentality of some spokesmen, however, because of what the dis- and mis- information does to our jury pool. The imputation to law enforcement and prosecution of evil intent in the relatively few mistakes we make is maddening as well.

So, according to that article, 1 / 30th of one percent of inmates are innocent of the crimes they are accused of? If that�s the case, the system is working a whole lot better than we give it credit for.

For the record, we have about the same percent chance of being stuck by lighting.

http://www.popsci.com/popsci/science/16da0b4511b84010vgnvcm1000004eecbccdrcrd.html

Well, let me give you some numbers straight from the horses' mouths*:

UH Law Center/Texas Innocence Network:
Completed reviews: 3,868
Exonerations: 2 (0.05%)
Seeking remedy: 1 (if successful, 3 exonerations would = 0.08%)

UT School of Law/Texas Center for Actual Innocence:
Completed reviews: 715
Exonerations: 2 (0.3%)
Seeking remedy: 1 (if successful, 3 exonerations would = 0.4%)

TTech School of Law/West Texas Innocence Project:
Completed reviews: 48
Exonerations: 0 (0.0%)
Seeking remedy: 1 (if successful, 1 exoneration would = 2%)

Totals to date:
Completed reviews: 4,631
Exonerations: 4 (0.09%)
Seeking remedy: 3 (if successful, 7 exonerations would = 0.15%)


[*all data is from "Convicting the Innocent in Texas: A Starting Point for Analysis and Discussion to Improve the Criminal Justice System," as prepared by the Texas Innocence Network for the Governor's Criminal Justice Advisory Council, dated September 2005. Percentage figures were calculated and rounded by me.]

Did it say if these were actually found to be innocent or were they let go becuase of a legal misstep?

Take a look at this page from Barry Scheck's organization. The tables to the right of the web page purport to show numbers related to innocent people convicted due to police and prosecutor misconduct, although I can't figure out exactly what the percentages are meant to show because there is no total given.

Interestingly, one category of prosecutor misconduct supposedly resulting in the conviction of innocents is "improper argument."

The Innocence Project

Under the direction of licensed lawyers, the local students will work with law students from Texas Tech University, Texas Southern University and the University of Houston as well as journalism students from the University of St. Thomas in Houston.

I'm not entirely sold on any legal program that includes journalism students as core soldiers in the fight for justice. Fabrication of evidence aside, it would seem very self serving to sensationalize the findings of the project.

Jeff, they didn't list them, but I think their "exonerated" are folks who were pardoned for innocence or that the prosecutor did not factually contest or retry after a post-conviction finding of factual innocence.

Prof. Dawson, for one, was very clear that the UT group was only interested in the factually innocent, some-other-dude-did-it cases. I hope they all stick to that level of intellectual honesty.

[This message was edited by Shannon Edmonds on 12-20-05 at .]

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Originally posted by John Bradley:
I imagine that same standard does not apply to their own projects, which undoubtedly make claims of innocence by the hundreds that prove to be false. Hmm, wonder if the projects would be willing to disclose their "wrongful" claims of innocence and study them as failures.

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Or acknowledge the amount of resources wasted on post-conviction DNA requests where the DNA tests confirm the defendant's guilt.

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Originally posted by Shannon Edmonds:
Jeff, they didn't list them, but I think their "exonerated" are folks who were pardoned for innocence or that the prosecutor did not factually contest or retry after a post-conviction finding of factual innocence.

Prof. Dawson, for one, was very clear that the UT group was only interested in the factually innocent, some-other-dude-did-it cases. I hope they all stick to that level of intellectual honesty.

[This message was edited by Shannon Edmonds on 12-20-05 at .]

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I hope they stick to it as well. But like Phillip pointed out; journalism students are not known for their intellectual honesty.

Looking at the percentages on from the link BL provided, there is a lot of wiggle room for the guilty to get out of doing the time.

1 innocent behind bars is 1 too many, but the possibilities of this project exploiting loop holes for the guilty is what frightens me.

On a side note, here is a quote from the site:

"Police officers and prosecutors need to be trained to avoid, and be held accountable for, utilizing improper techniques to secure convictions. One step toward this goal would be the creation of disciplinary committees that focus exclusively on misconduct of police officers and prosecutors.

Additionally, the further involvement of federal agencies is needed to address misconduct by state police officers.

Thoughts?

Well, before the anti-prosecution folks can get changes in the law, they have to show that there is a problem.

Oh, by the way, did I mention that the Soros Foundation has given a grant to the local ACLU to commission a report on prosecutorial misconduct in Texas? And that it will reveal rampant abuses by Texas prosecutors? (How do I know? Trust me ... ) That will be their "evidence," just as they've used their own self-serving "studies" as evidence for the need for other changes. I bet the press release was written before the "study" was even started!

I noticed under the "police misconduct" heading, 52% of the overall number involve "allegations." I have yet to see the trial where the defendant did not allege some level of "police misconduct."

Allegation of Undue Suggestiveness in Pre-Trial ID Procedures...........................33%

Allegation of Coerced Witness.........9%

Coerced Confession / Admission Alleged..8%

I wonder how they arrive at the numbers for "prosecutoial misconduct?" It also seems odd that the total number of cases the percentages relate to is omitted.

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Originally posted by Shannon Edmonds:
Well, before the anti-prosecution folks can get changes in the law, they have to show that there is a problem.

Oh, by the way, did I mention that the Soros Foundation has given a grant to the local ACLU to commission a report on prosecutorial misconduct in Texas? And that it will reveal rampant abuses by Texas prosecutors? (How do I know? Trust me ... ) That will be their "evidence," just as they've used their own self-serving "studies" as evidence for the need for other changes. I bet the press release was written before the "study" was even started!

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I wonder what the heck the great state of Texas did to gain the glance of Mr. Soros. I am surprised he has much money left to grant after all of his pre-election expenditures.

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I wonder how they arrive at the numbers for "prosecutoial misconduct?" It also seems odd that the total number of cases the percentages relate to is omitted.

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The omission of actual numbers on that site screams of manipulation.

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"Police officers and prosecutors need to be trained to avoid, and be held accountable for, utilizing improper techniques to secure convictions. One step toward this goal would be the creation of disciplinary committees that focus exclusively on misconduct of police officers and prosecutors."

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Am I to understand that the State Bar's disciplinary procedure, coupled with appellate and post-conviction review, will sufficiently serve to deter defense misconduct or inadequacies to the task, but those mechanisms are insufficient to prevent or rectify rampant prosecutorial mischief? Where is the hue and cry for "disciplinary committees that focus exclusively on misconduct" or ineffective assistance of defense counsel? And will these committees also have authority to impose sanctions for frivolous or false claims of actual innocence by defendants? Perhaps it is overly simplistic, but it seems to me that one of the foundational principles of the adversary system of justice is that what is good for the goose also is good for the gander. Being well acquainted with a number of defense lawyers, I feel confident in positing that they would be resistant to the prospect of having to face a separate disciplinary tribunal after answering a grievance and an ineffective assistance writ.

I thought we already were subject to that federal scrutiny. If a plaintiff/complainant can show intentional deprivation of her civil rights are we not subject to criminal and civil penalties in both state and federal court? When you go to the various websites, you find that the critics are equally exercised about the the actions of US attorneys, FBI, BATF and on and on. Maybe they can resurrect Diogenes; surely he could find one honest person to serve as supreme watchdog over the evil guvmunt.

But what would happen when he or his appointee subpoenaed the news media for unedited video of conversations with ne'er-do-well prosecutors?