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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. […]

Cook County State’s Attorney Kim FoxxFacebook

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.