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Do Conviction Integrity Units Work?

Cook County State’s Attorney Kim Foxx

Do Conviction Integrity Units Work?

In May 1988 on the south side of Chicago, a video store caught fire in the middle of the night. The fire spread quickly, eventually burning down seven other nearby businesses and killing two people. The police determined it was arson, and quickly identified the owner of the video store as the mastermind of a four-person plot. But it was a local repairman, Arthur Brown, who prosecutors accused of actually setting the fire, using gasoline as an accelerant. Two other people were accused of taking part, and all four were charged with first-degree murder and arson. At the first bond hearing, local prosecutors announced they would seek the death penalty for three of the men, including Brown. He immediately collapsed to the floor. “I’m just emotional,” Brown said, apologizing to the judge. “I’ve never been in a courtroom before.”

Brown had signed a confession during his interrogation but steadfastly maintained his innocence afterward, continually stating that he only signed it after being beaten and threatened by the cops for over seven hours. However, in 1990, after a trial led by the Cook County State’s Attorney’s office, he was convicted and sentenced to life in prison. Brown was granted a new trial in 2003, but was once again found guilty and sentenced to life in prison. But last November, a judge threw out his conviction and ordered a new trial based on Brown’s post-conviction petition. That petition argued that prosecutors in his second trial had not only solicited testimony they knew to be false from one of the police officers who handled his case, but “improperly relied extensively on that false testimony in its opening statement and closing argument.” Cook County State’s Attorney Kim Foxx asked her Conviction Integrity Unit to review the case. Days later, prosecutors dismissed the charges and Brown was released.

Brown is one of the 139 people who was exonerated last year, according to the annual report of the National Registry of Exonerations (NRE), released last week. According to the report, 42 of those exonerations involved Conviction Integrity Units (CIUs). These units, which are part of prosecutors’ offices, are intended to “prevent, identify, and correct false convictions.”

As prosecutorial reform has garnered more attention, many district attorneys have responded to the calls for change by creating CIUs. These conviction review teams have become more common — according to the report, there were 33 CIUs in 2017, “more than double the number in 2013, and more than six times the number in 2011.” (That list doesn’t include recently created units in Detroit, Michigan, and Jacksonville, Florida.) But while the number of CIUs is growing, they are still extremely rare. There are, after all, 2,300 prosecutor’s offices in America — meaning a whopping 98.5 percent of offices don’t have a CIU.

Further, the mere fact that a CIU exists means very little — several have accomplished nothing. In fact, of the 33 offices listed in the report, 12 of them have never exonerated a single person. Another five offices have exonerated only one.

In Boston, Suffolk County DA Dan Conley has touted the importance of his Conviction Integrity Program. Last year, he awarded his office’s Unsung Hero award to the director of the program, Donna Patalano, stating that her “commitment to the interests of justice has helped us set a national standard with policies replicated by prosecutors across the country.” That Conley brags about this unit is baffling. Suffolk’s CIU has no full-time staff. It’s not even mentioned on the office’s website. And in six years, it has exonerated only one person.

At first glance, San Diego’s office may look a little better than Boston’s. Two years ago, the office formalized its Conviction Review Unit. Before that, an assistant district attorney in the office had served as the office’s liaison to the Innocence Project since 2011. Now, the division has two full-time staff attorneys. It also has a website where people can apply online to have their convictions reviewed. The site even quotes Martin Luther King Jr.’s Letter from a Birmingham Jail: “Injustice anywhere is a threat to justice everywhere.” But in seven years, the office has been responsible for just one exoneration.

The list goes on. Los Angeles County is the biggest county in the nation, yet in three years, its office has exonerated exactly two people, according to its report. Manhattan’s DA, Cy Vance, has exonerated just five people since 2010. Philadelphia has exonerated just three people in four years.

And those offices look pretty good compared to cities like Tucson, San Francisco, Washington, D.C., Fort Worth, and Sacramento. All of those offices have CIUs and yet, according to the report, they have yet to exonerate a single person.

Exonerations can take years, and sometimes these offices are facing circumstances outside of their control. For example, in Texas, the post-conviction process “presents unique procedural hurdles to the innocence process,” according to a 2016 article written by former Harris County ADA Inger Chandler in the American Bar Association’s Criminal Justice magazine. “It’s not enough in Texas to believe justice would be served by overturning a conviction. Nor is it enough to say, ‘Had I known then what I know now, I would not have prosecuted this case.’” In Texas, there must be a constitutional violation to vacate a conviction.

Still, even in places facing systemic challenges to achieving exonerations, a productive CIU is possible. So what does an effective CIU look like?

CIUs have done at least some good. According to NRE’s report, they’ve “helped secure 269 exonerations from 2003 to 2017; more than 80% [of which] occurred since 2014.” But many of these offices see tens, sometimes hundreds, of thousands of cases each year, and the evidence says that prosecutorial misconduct is far from unusual. According to the report, 60 percent of all wrongful convictions last year — including 84 percent of homicide wrongful convictions — involved official misconduct. And while official misconduct encompasses a large group, “the most common misconduct documented in the cases in the Registry involves police or prosecutors (or both) concealing exculpatory evidence.” If in 15 years, these units have identified fewer than 300 cases where a person was wrongfully convicted, they are certainly not effective enough.

The truth is that CIUs’ biggest asset is also their biggest obstacle. On the one hand, these units have incomparable access to district attorneys’ internal evidence, and have better access to other law enforcement agencies.

But because CIUs are part of the DA’s office, they are often incentivized to protect their own. Most of these units are staffed by career prosecutors, who are given the task of investigating their colleagues and their superiors — so even when they do identify misconduct, they may be hesitant to accuse those around them of wrongdoing. “Conviction review units are totally contained within the office, and the prosecutor has total control over which case he’ll review and which ones he won’t,” said Phil Locke, Ohio Innocence Project advisor, in CounterPunch magazine. “My personal opinion is that CRUs [another term for CIUs] are politically motivated and self-serving. It’s the fox guarding the henhouse problem. They’ll cherry-pick the cases, overturn the obviously worst ones, thump their chests about all the good being done.”

There are some institutional necessities for an effective CIU. According to a report released by the Quattrone Center, a policy hub at the University of Pennsylvania focused on preventing errors in the criminal justice system, CIUs should fundamentally be “independent, flexible, and transparent.” The report lays out several policy and practice recommendations, including: the unit should stand alone, rather than within an office’s appellate or post-conviction division; it should be “led by an attorney with firsthand prosecutorial and criminal defense experience;” and it should “review all petitions on their factual merits, and not on non-substantive grounds,” meaning the office should even review cases where a petitioner pled guilty. According to Quattrone’s report, testing evidence and establishing an “open exchange of information” are also important, as are personnel trainings and written policies.

Certainly, all of these things are critical. But even following these guidelines won’t guarantee an effective CIU unless they have support from the top — these units require a strong, dedicated district attorney who is concerned with justice above convictions. Consider the case of Harris County, the third largest county in the nation. The DA’s office is led by Kim Ogg who was elected in 2016, and is generally considered one of the most progressive prosecutors in the nation. In the past, Harris County DAs were known for prosecuting trace cases, or cases that involve a miniscule amount of drugs. Often, due to a crime lab backlog, it took months for that trace drug evidence to be tested. That meant that many defendants who could not afford bail would have to sit in jail, waiting for a test to prove their innocence. Unsurprisingly, many would ultimately just plead guilty so that they could be released. The drug labs, then, would de-prioritize testing those samples at all, since the cases had technically been resolved.

In 2014, under former District Attorney Devon Anderson, Harris County’s CIU identified the backlog and the large number of people who were innocent but had pled guilty. As a result, the report states, “the District Attorney’s Office developed a plan to clear that backlog and exonerate as many of the innocent defendants as possible.” Now the office has a policy that drugs must be tested before a guilty plea is accepted.

Harris County is a rare example, and it’s unclear if the office has been as aggressive about identifying wrongful convictions outside of the drug context. Still, this is one instance where a CIU was effective — the unit recognized wrongdoing, the office exonerated the innocent, and policy changes were implemented to prevent further wrongdoing.

Unfortunately, there just aren’t many examples like this. For many prosecutors, establishing a unit allows them to appear as if they are making strides towards justice. But an actual dedication to integrity is a different matter altogether.

In fact, as NRE’s report points out, many CIUs are anything but eager to investigate these cases, even when there’s evidence of innocence. “Most CIU exonerations were initially investigated by defense attorneys, innocence organizations, journalists, or others. In some cases, the exonerated defendants even faced concerted resistance by the prosecutors’ offices before the CIUs came around to supporting the exonerations.”

Arthur Brown’s case followed such a path. His wrongful conviction was initially investigated by an outside attorney dedicated to exonerating the innocent. And even after a judge vacated his conviction and ruled that he was entitled to a new trial due to prosecutorial misconduct, Cook County prosecutors vowed to retry him. It wasn’t until Brown appealed to Foxx directly that the CIU decided that the case should be dismissed.

In the past few years, CIUs have become stronger and more prevalent than ever. But that doesn’t mean they’re adequate. If prosecutors truly believe it’s their role to fight for justice, they should implement, staff, and encourage independent CIUs. After all, there are thousands more Arthur Browns languishing in prison as we speak. It’s prosecutors’ job to exonerate them.

DA’s Loss in Texas Primary Pinned to Prosecutorial Misconduct in Biker Shootout Case

Motorcyles in the parking lot of the Twin Peaks restaurant after a shootout between biker gangs
Erich Schlegel / Getty

DA’s Loss in Texas Primary Pinned to Prosecutorial Misconduct in Biker Shootout Case

Half the challengers to Texas’s sitting district attorneys were successful earlier this month in what criminal justice reformers are calling a promising sign that their message is working. Seven out of 13 incumbent DAs, a mix of Democrats and Republicans, lost their primaries. The Texas District and County Attorneys Association (TDCAA) argues this turnover reflects typical political fluctuations rather than reform momentum. But one particular loss Tuesday night indicates that people may be paying more attention to abuses in the courthouse.

Texans voted to oust incumbent McLennan County DA Abel Reyna after eight years. The loss seems connected to Reyna’s mishandling of a high-profile Waco biker shootout in 2015.

Barry Johnson, who beat Reyna in the Republican primary, made the bungled prosecution of more than a hundred bikers a central issue of his campaign. The years since the shootout, he argued, have been marked by misconduct, suppressed evidence, and overreach.

According to the official story, two rival motorcycle gangs got into a turf war outside a local Twin Peaks restaurant, and then turned their guns on police officers who tried to intervene. Nine of the bikers were killed in the shootout and 20 more were wounded. But investigative reporters have cast doubt on this narrative, suggesting instead that police overreacted to a small skirmish and escalated the fight. Police were responsible for at least four of the nine deaths, according to evidence obtained by the Associated Press.

Police arrested 177 people at the restaurant, including some who were hiding in the bathroom during the fight and three bikers who arrived after the shooting was over. A federal lawsuit later alleged that Reyna had ordered the mass arrests and prepared a “cookie-cutter” affidavit regardless of the evidence against individual bikers. A justice of the peace set bail at $1 million for every single arrestee “to send a message,” in his words. Many were stuck in jail for weeks without a lawyer.

Reyna’s office ultimately pursued charges against more than 150 bikers under the argument that even individuals who weren’t involved in the fight were guilty by their attendance alone. More than 100 bikers have since sued Waco for wrongful arrest. Their cases could cost the city more than a billion dollars.

Prosecutors were caught repeatedly withholding evidence during the first and, thus far, only biker trial. A Texas Ranger relayed that Reyna had specifically instructed him to keep evidence away from the defense team.

“At one point in the trial, [the defense attorney’s] discoveries of withheld evidence had become so regular that [the judge] ordered Reyna to instruct his prosecutors and all law enforcement agencies involved in the Twin Peaks investigation to go back and search their files to make sure all materials had been disclosed to the defense as required by law,” the Waco Tribune reported.

That trial ended with a deadlocked jury in November. Since then, Reyna has dismissed more than 50 biker cases and recused his office from another to avoid a disqualification hearing. The bikers’ defense attorneys subpoenaed several of Reyna’s employees and a retired police detective to testify about the DA’s misconduct and corruption.

Reyna’s ousting is all the more remarkable given how rarely prosecutors face any kind of consequences for misconduct. But the Waco biker shootout was unusual in two important ways. While the vast majority of gang prosecutions target black, Latino, and Asian defendants, the Waco bikers are predominantly white. Hundreds of other white bikers came from all over the country to protest their treatment. The media attention to the shootout itself also helped draw top defense attorneys and resources to the bikers’ cause. The bikers’ attorneys were able to challenge Reyna’s office every step of the way and devote resources to uncovering evidence of misconduct.

In comparison, most Texas defendants’ access to quality attorneys is spotty at best. The state relies on counties to provide funding for indigent defense, and many counties charge poor defendants for the service. Waco has even sent detectives to indigent defendants’ houses to verify they were poor enough to ask for a court-appointed lawyer, effectively intimidating some into waiving their right to an attorney. Thanks to this system, prosecutors’ violations largely go unnoticed and unchecked.

Tough-on-crime campaigning is far from obsolete, but it’s no longer the guaranteed win it once was. Despite his highly publicized missteps, Reyna’s re-election campaign focused on the strength of his biker prosecutions. He even used footage from the shootout in political ads on TV and social media, landing him in front of a judge the eve of Election Day for violating a gag order.

“The way you have handled this case is absolutely shameful and misleading to the citizens of this county,” Visiting Judge Doug Shaver told Reyna in court. “I know the election is tomorrow, and we can’t do anything about it up to this point. But you should be ashamed of yourself.”

Correction: This story has been updated to note that Reyna served eight years, not eight terms.

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Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’

Activists protest marijuana arrests in New York City
Andrew Burton

Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’

I love New York.

It’s my favorite city in the world. I live and work here by choice.

We get a lot of things right. Every day I walk down the street or hop on the subway, I am reminded that I am a citizen of a very big, incredibly diverse world.

But our progressive reputation in New York often far outpaces our reality.

Regularly seen as one of the most liberal cities in the world, we have a liberal Democrat as mayor and a City Council with 47 of 51 positions held by Democrats. That’s how I know that the ugliness of America’s justice system is not a conservative problem. If that were the case, New York’s justice system would be a model for the world.

It isn’t. In fact, for decades now, this city has been a model for how not to be.

What’s weird is that the city leaders here so often claim otherwise.

No issue typifies this gap between reputation and reality more than the quiet scandal of this city continuing to arrest, charge, and convict people of color for low-level marijuana offenses.

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

This is one of many examples of city leaders here in New York talking the talk and just not walking the walk. Every time one of those ridiculous arrests is made, it sends that person down an outrageous rabbit hole in which they must now pay bail to get out, potentially get sent to the hell hole we know as Rikers Island, lose their jobs, be taken away from their families where they then miss things like birthdays and funerals. They then run the risk, again for something the city said they’d stop doing, of ultimately getting a criminal record for the very thing white people are doing with virtual impunity all over this city.

District attorneys have continued to prosecute these offenses as well. Bob Gangi, director of the Police Reform Organizing Project, said that despite DAs’ promises to lighten up on marijuana possession, PROP’s court monitors still see possession cases every time they’re in court. “If [prosecutors] were serious about challenging the racial bias in NYPD tactics and the harm that broken windows policing inflicts, they would decline to prosecute virtually all marijuana possession arrests,” Gangi told The Appeal.

This isn’t just bad politics, or bad optics — lives are being ruined. This isn’t even a war on drugs — it’s a war on people — Black and brown people — all over New York City. I’m embarrassed. It’s a human rights debacle.

Not only that, it’s horrible business. In addition to the untold tens of millions of dollars it costs to arrest, book, prosecute, and house people arrested for smoking weed, exponentially more money is then lost in potential tax revenue that could be quickly generated if this city simply caught up with other cities, states, and countries around the world.

By one conservative estimate, New York could bring in $156.4 million per year in additional tax revenue if marijuana was legalized. Translation: That’s a ton of money that could be used across this city for education or new rec centers and after-school programming. That money could be used for smart reforms to our local justice system to help fund diversion programs and the rehab centers our city so desperately needs. We’re talking about over $1.5 billion of revenue that would be generated over a decade.

Studies now show that more marijuana is consumed in New York City than any other city in the world and instead of seeing this as a growth opportunity for business and taxes, it continues to be treated as an opportunity for mass incarceration and racial profiling.

Ultimately, I chalk this up to a peculiar sense of complacency among so-called liberals and Democrats who have all of the power in the world to do better, but choose not to. And let’s not kid ourselves — these are choices. The 17,000 annual arrests of people the city said they’d leave alone are 17,000 unique choices. Passing up billions in tax revenue for something that is already being done all over the country is a choice.

And politicians can and should be held accountable for their choices.

Thanks to Keli Young.

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