Bills call for innocence panel

January 26, 2013

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Although 11 states have created Innocence Commissions in the wake of hundreds of post-conviction DNA exonerations, some are predicting that Texas lawmakers will once again give the idea a thumbs down.

To date, there have been 302 post-conviction DNA exonerations. Forty-eight were in Texas, with Dallas County – at 24 – having more than any other county in the country. Eighteen of the nationwide exonerations were to death row inmates.

Sen. Rodney Ellis (D-Houston) has re-filed a bill calling for the formation of an Innocence Commission – an initiative he has been trying to get passed since 2005.

In the House, Rep. Ruth Jones McClendon (D-San Antonio) has filed a bill similar to Ellis’ SB 89. HB 166 is a proposal to create the Timothy Cole Exoneration Review Commission, a nine-member panel that, like the one proposed by Ellis, would review exoneration cases to determine what went wrong with the system.

McClendon’s legislation also calls for matters of possible prosecutorial misconduct to be referred to the appropriate oversight agencies for review and action.

According to the New York-based Innocence Project, the Innocence Commission in North Carolina is considered a national model for effectiveness and reform. In 2003, the Illinois Legislature passed into law 85 recommendations made by that state’s Innocence Commission.

Kathryn Kase, executive director of Texas Defender Service, said that, on a scale of 1 to 10 with 10 being highly likely, she believes the chance of the Texas Legislature voting for an Innocence Commission is a 1.

“Unlike the NTSB (National Transportation Safety Board), we never go in officially and try to figure out what went wrong,” Kase said. “We spend so much money on the system – and where is the accountability? It (an Innocence Commission) is really an idea whose time has come.”

Last September, the Texas District and County Attorneys Association released a 31-page report challenging data compiled by innocence groups pertaining to prosecutorial misconduct.

Jeff Blackburn, founder of the Innocence Project of Texas (IPOT), said he fears that an Innocence Commission like the one being proposed by Ellis would be symbolic and a waste of resources.

Blackburn said he would like to see the Legislature provide more funding for innocence projects that can work to free those wrongfully convicted, rather than examine the cases after exonerations have occurred. Currently, he said, IPOT receives $80,000 a year from the Legislature, “which is just enough to fail,” he said.

“We need lawyers who do the work, not politicians who do a meeting,” Blackburn stated. “We need a fully funded Innocence Project, and I know how to do that. Give me $750,000 a year and I’m going to give them something to talk about. Politicians waste time trying to create an agency to talk about these exonerations, but there aren’t going to be any exonerations unless you have lawyers getting these people out.”

Like Kase, Blackburn believes there is little chance that the 83rd Legislature will take any meaningful action regarding innocence projects or preventing wrongful convictions. However, Kase said there is always hope.

In an email to the Texas Center for Community Journalism, she wrote that in 2009, the Legislature “at the very last minute passed the bill creating the Tim Cole Advisory Panel on Wrongful Convictions after Tim Cole was posthumously exonerated.”

The Advisory Panel was directed to advise the Task Force on Indigent Defense (now the Texas Indigent Defense Commission) in the preparation of a study to determine the chief causes of wrongful convictions. From that study sprang a new focus on eyewitness identification procedures, the recording of interrogations and open discovery policies.

On Sept. 1, 2012, every law enforcement agency in Texas, by law, had to have on file a written policy for eyewitness identification.

what representatives say

The Hood County News contacted the offices of state Sen. Brian Birdwell and state Rep. Jim Keffer. Each provided a statement regarding their views on an Innocence Commission.

Birdwell stated: “At face value, I agree with reviewing and removing systematic problems with court convictions, and particularly ones in which an exoneration later occurs. At this time, I am hesitant to back the creation of a new governmental commission whose specific functions, authority, oversight and expenses are undetermined.”

Keffer gave this opinion: “While I support the intentions behind creating the Texas Innocence Commission, I believe our criminal justice system and legislative bodies are the proper vehicles for achieving justice and addressing problems with wrongful convictions. Reform is necessary regarding our criminal justice system and wrongful convictions, but creating more government bureaucracy and fiscal burdens are not the answers. Instead, we need to encourage our lawmakers and private citizens to work within our current system to pass meaningful changes that address these issues.”

Kase said that Texas exonerees are compensated $80,000 for each year of their wrongful imprisonment. If each of Texas’ 48 exonerees served 13.6 years – the average time of incarceration for exonerees nationwide – that would mean a total compensation package of $52.2 million. Some, like Blackburn, suspect that the real issue isn’t so much the funding of another government bureaucracy, but rather the likelihood of opening Pandora’s Box.

As IPOT faces the possibility of reduced funding through budget cuts during the current legislative session, Blackburn and IPOT’s board of directors are trying to figure out how to keep going with little support from Austin.

“Our funding plan,” he said, “is buying lottery tickets.”

Kathy Cruz is a staff writer at The Hood County News in Granbury. She can be reached at [email protected]

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