rosecutors Resist Claims of Innocence Despite Growing Number Exonerations

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Being wrongfully charged with a crime has immediate and severe personal implications. It results in an arrest: an arrest creates disdain from friends (even family members); an arrest often creates an inability to provide for the family; an arrest, depending upon nature of offense, means either no bail or an inordinately high bail; an arrest creates a need to retain an skilled attorney, or learn how to deal with a lawyer whose eyes are focused on a “plea bargain;” and an arrest produces the terrible psychological and emotional toll of facing a jury of twelve people, most of whom have already assumed guilt.

Without a good lawyer, a wrongful arrest almost always leads to a wrongful conviction. Conviction leads to a criminal record, probation or imprisonment. Regardless of the state, penal systems across America are dangerous, hostile environments with little or no empathy for the wrongfully convicted. The official world of the keeper/kept demands subservience, obedience, and the physical and psychological strength to cope with physical and mental abuse inflicted by keeper on kept. The inmate subculture is ruled by brute force, strict codes of personal and community behavior, and the reality in which survival to the next day is tenuous at best.

The post-conviction struggle for complete exoneration or a judicial declaration of wrongful conviction requires a Herculean effort. Appellate courts are not receptive to inmate claims of police-fabricated evidence, prosecutorial misconduct, faulty forensic evidence, illegal searches/seizures, coercive or involuntary confessions, highly suggestive lineup procedures, or claims of ineffective assistance of defense counsel. Courts do not recognize “free-standing actual innocence” claims in post-conviction habeas corpus proceedings. Claims of actual innocence must be anchored to a specific constitutional violation. Put simply, a falsely accused individual given a procedurally “proper” trial can remain in prison for the full term of sentence or even be executed without any redress.

There are many national and state organizations, as well as law schools, dedicated to identifying and exonerating the wrongly convicted. But their resources are limited and the demand for their services constantly increasing. It can take decades for a falsely accused individual to establish his/her innocence as exemplified by the Michael Morton case here in Texas. Based upon a significant number of studies examining wrongful convictions/exonerations, there is compelling evidence that thousands of innocent people are incarcerated in the nation’s prison system, either serving long sentences or awaiting execution. A joint project of the University of Michigan School of Law and the Center on Wrongful Convictions at Northwestern University School of Law, The National Registry of Exonerations released the largest ever report which concluded that more than 2,000 offenders falsely convicted were exonerated over the past 23 years. The report specifically deals with 873 exonerations but added there were nearly 1200 other exonerations; and in the 873 group, the average amount of time the wrongly convicted offender spent in prison was 11 years. A summary of the report, which examined exonerations between 1989 and 2012, found the following:

93% of the exonerated were men; 7% women.

50% were black, 38% white, 11% Hispanic, and 2% Native American or Asian.

37% were exonerated through DNA evidence; 63% without DNA.

Collectively, the exonerated spent 10,000 years in prison, an average of 11 years per offender.

Since 2000, there have been an average of 52 exonerations annually, 40% of which involved DNA evidence.

The report indicates more alarming findings. The average time from conviction to DNA exoneration increased from 7 years in the early 1990s to 18 years today—and over the past four years, most of the DNA exonerations involve murder convictions, usually rape-murders. The following is a breakdown of the exonerations by offense:

48% homicides (416), including 101 that resulted in a death sentence.

35% sexual assaults (305), with 203 being adult sexual assaults while 102 involved child sex abuse.

5% robberies (47).

5% other violent offenses (47).

7% drug, white collar and other non-violent offenses (58).

While all the exonerations are cause for alarm, it is those 101 death sentence cases which are the most chilling. A safe assumption can be made that if between 1989 and 2012, 101 death row inmates were exonerated, dozens more innocent offenders have been put to death since executions were resumed in this country in January 1977.

Perhaps just as alarming are the following findings concerning the causes of false convictions:

51% involved perjury or false accusations.

43% involved mistaken eyewitness identification.

42% involved official misconduct.

24% involved false or misleading forensic evidence.

16% involved false confessions.

While 42% of the causal factors involved “official misconduct,” we believe there is some form of government misconduct, either by the police or prosecutors, involved in all these factors. Convicting the guilty is never truly an accident; an incidental miscarriage of justice. Law enforcement and prosecutors generally make the evidence fit the falsely accused—and when this “mistake” is brought to attention of the same law enforcement and prosecutors, they will usually try not to correct the mistake and instead cover it up. They do not see the individual suffering associated with a wrongful conviction. They are too concern about the damage a wrongful conviction will do to their professional reputations and careers. This is especially true in wrongful homicide convictions as evidenced by the Registry’s following conclusions in homicide exonerations:

66% involved perjury or false accusation as the leading cause for conviction with 44% of the cases involving deliberate misidentifications.

56% involved “official misconduct.”

76% involved false confessions with 39% of the confessions being made by the exonerees themselves and the rest by co-defendants who falsely implicated them. Juvenile and mentally retarded exonerees were five and nine times more likely to falsely confess than those without mental disabilities.

The casual factors involved in sexual assault cases are equally disturbing, especially in child sex abuse exonerations:

53% involved mistaken identification by white women wrongly identifying black men, attributed primarily to what is called “the difficulty of cross-racial eyewitness identification.”

37% involved bad forensic evidence (bad “CSI” or “NCIS” evidence).

74% of child sexual abuse exonerations involved “fabricated crimes” (abuse that never occurred).

Robbery and drug exonerations likewise have similar casual factors:

81% of the robbery exonerations involved mistaken identification.

48% of the drug exonerations involved “deliberate” mistaken.

Worse yet, eleven of the exonerations involved cases in which no crime at all was committed. For example, “five exonerated defendants were convicted of killing or severely injuring infants by shaking them under circumstances that recent evidence has shown to be impossible” while “six exonerated defendants were convicted of arson or arson-murder based on forensic evidence that is now recognized as valueless” (lending credence to the oft-repeated charge that the State of Texas executed an innocent man in 2004 when it put Cameron Todd Willingham to death for the arson-murder of his three children). And, finally, there are “a small number of no-crime exonerees in which suicide and accidental death were mistakenly treated as homicides. The Registry concluded there are probably “more false convictions of each sort.”

Texas, with the exception of Dallas County, did not fare well in the Registry’s report, placing third behind Illinois (101) and New York (88) with 84 exonerations: “ … Dallas County, for example, has 36 exonerations, second only to Cook County, while Harris County (Houston) with 70% more people, has only 12 exonerations. Much of the credit for the Dallas exonerations goes to a unique institution. In 2007, Craig Watkins, the newly elected District Attorney of Dallas County, created a Conviction Integrity Unit that has received national attention for actively seeking out, investigating and exonerating defendants. The District Attorney’s Conviction Integrity Unit is an essential reason why Dallas had 19 exonerations from 2007 through 2011 – more than any other county in the country in that period – but it does not explain why Dallas already had 17 exonerations at the end of 2006, before Watkins took office, while Harris County had only 6.

“The most important reason for the high exoneration rate in Dallas is the county crime lab, the Southwestern Institute for Forensic Sciences (SWIFS). SWIFS has a policy that is rare among crime labs: it retains all biological samples it tests rather than destroying them or returning them to the police agencies that sent them. As a result, post-conviction DNA samples are more likely to be found in Dallas than in Houston – or for that matter, than in almost any county in the country. Unsurprisingly, 21 of the 36 Dallas exonerees were freed by DNA. If the biological samples in their cases had been processed by the Houston Police Department Crime Lab rather than by SWIFS most of them would probably still be in prison.”

And while state and local officials are responsible for most wrongful convictions through “official misconduct,” most do not provide any, or meaningful, compensation for those individuals wrongly convicted. Mark Godsey, Director for the Global Study of Wrongful Conviction, reported recently on salon.com that only 27 states provide “some level of compensation for the wrongfully convicted.” Godsey pointed to a 2007 New York Times report, based on interviews with 137 exonerees, which found that more than half of them were “struggling – drifting from job to job, dependent on others for housing or battling deep emotional scars. More than two dozen ended back up in prison or addicted to drugs or alcohol.” Godsey also pointed to a 2009 Innocence Project report which found that 40 percent of the exonerees received no compensation from the 23 states that do not provide compensation to those they wrongly convict.

Exoneration thus means that innocent people are arrested, convicted, and sent to prison for crimes they did not commit through either unethical or illegal misconduct by state officials. Exoneration also means that even after the exonerees are freed, nearly half of the states in this country will not provide them with any compensation for the wrong done to them; and of the remaining states that do provide compensation, the amount of compensation is not nearly comparable to the wrong suffered by the exonerees.

Hidden in the exoneration data are those prosecutors who knowingly and intentionally send innocent people to prison and who resist all efforts to establish their innocence. Undeniably, that is the most despicable facet of our criminal justice system, and it occurs far more than most people think. It is our firm belief that this type of official misconduct should be criminally prosecuted.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization