It sounds like something out of a prime-time TV drama.
Attorneys, with help from new science, debunk old testimonies and theories in cases long closed, finally proving that the person who has maintained his innocence is, in fact, innocent.
But it’s not fiction: It’s a nuanced, sometimes controversial trend that’s becoming more common across the United States every year.
Since 2013, the number of conviction integrity units, a division of a prosecutorial office that works to identify and correct wrongful convictions, has more than doubled in the United States, rising from 12 counties to 26 across the country. To be sure, the number remains low – there are over 3,000 counties in the United States. But they are having an impact.
In the wave of steadily increasing exonerations – in 2015, more people were exonerated than any other year before – conviction review units played a major role.
Of the 156 exonerations that took place in 2015, a record 60 stemmed from the work of the review units, according to the National Registry of Exonerations, a project by the University of Michigan Law School.
The trend is particularly evident in Texas, a law-and-order state perhaps better known for the high number of convicts that it sentences to death each year. It has the most exonerations by conviction review units of any state, the most exonerations in general and the second highest number of review units.
The idea for a county-level conviction review unit originated in Dallas nine years ago – although a less official but similar effort by the district attorney’s office was already under way in Santa Clara, California – in light of years’ of high-profile exonerations stemming from new DNA evidence.
More than 150 defendants on death row have been exonerated nationwide since 1973, according to the Death Penalty Information Center, a nonprofit based in Washington, D.C., that provides analysis regarding capital punishment. In at least 20 cases, DNA played a substantial role in establishing innocence.
49% Percentage of Texans who believe that innocent people are sentenced to the death penalty in at least some cases. Another 19 percent believe innocent people are sentenced to the death penalty in a “great deal” of cases, according to a 2013 poll.
A 2013 University of Texas/Texas Tribune poll showed the majority of Texans believed that death penalties are given wrongfully “occasionally” or “a great deal of the time.”
“Dallas had a bad reputation (for wrongful convictions), really,” said Mike Ware, who was the first director of Dallas County’s review unit. He now serves as executive director of the Innocence Project of Texas, a nonprofit in Fort Worth that investigates claims of innocence.
But because Dallas had preserved its evidence for an unusually long time – it had DNA from cases that were decades old – it was easier for the unit to investigate defendants’ claims of innocence and, in some cases, to prove they had been wrongfully convicted. “They were starting to get some sort of statewide and maybe even national attention for the DNA exonerations that were coming out of Dallas,” Ware said.
Although the idea was perceived as politically risky – maybe even politically disastrous – at the time, Ware said, the rationale for a unit that reviews convictions caught on across Texas, and eventually across the country. Now, the state is rivaled in the numbers of conviction review units only by New York and California.
Perhaps the primary reason for the popularity of review units in Texas, said Cynthia Alkon, a law professor at the Texas A&M School of Law, is the willingness of the state legislature to review and change laws because of the exonerations.
For instance, in 2011 a man named Michael Morton, who spent nearly 25 years in prison, was exonerated for the murder of his wife after DNA evidence implicated someone else.
The prosecutor in the case was found guilty of prosecutorial misconduct, including withholding evidence, and tampering with evidence and government records. Nearly two years later, Republican Gov. Rick Perry signed into law the Michael Morton Act, which requires prosecutors to keep records of and turn over any evidence to the defense, Alkon said.
“It sounds like a really simple thing that should’ve already been in place,” she said. “But it wasn’t.”
Alkon, who was previously a public defender in California, said she has not seen these types of changes in other states.
“I think they were consciously and critically looking at why these people were being wrongfully convicted,” she said of the Texas legislature.
The Dallas County review unit spawned imitators once other counties saw its success. Although not always popular among the police department or victims groups, Ware said the unit in Dallas County was popular among the general public, citing it as one of the primary reasons that the district attorney was re-elected during the next election cycle.
It sounds like a really simple thing that should’ve already been in place. But it wasn’t.
Cynthia Alkon, law professor at Texas A&M School of Law
Across Texas, there are five conviction review units. The latest, in Tarrant County, started up a year ago as part of the newly elected district attorney’s campaign platform.
With the advent of DNA technology, many assumed we might soon see the end of wrongful convictions. Instead, the technology opened the door for a whole new introspection of the criminal justice system. Everything, from false confessions to outdated scientific evidence that is no longer considered accurate, came under the spotlight.
“What we are grappling with now is that we know there are going to be lots of cases where there is no biological evidence,” said Dawn Boswell, chief of the Tarrant County conviction review unit.
“You don’t have what some people would say is the easy call on the DNA,” she said. “You have to figure out whether someone is really innocent when you don’t have the evidence to go through.”
And Boswell would know. Last July, she walked into her office uncertain about what her new position monitoring the scales of justice would bring and what it would mean for Tarrant County. The newly created conviction review unit had been planning a soft rollout of sorts, a quiet opening that would ensure more time to figure out what, exactly, the unit’s policies should be.
Instead, on the first day, Boswell and the attorneys in the unit began re-investigating the case of John Nolley, a man convicted of murder who had maintained his innocence for the nearly 19 years he had spent in prison. Nolley had been convicted primarily on false testimonies by jailhouse informants, according to the Innocence Project of Texas. No physical evidence linked him to the crime.
“I really didn’t want, and more importantly the district attorney didn’t want, to be a situation where we say we’re setting up this (unit) to do these great things,” she said. “Because it’s easy to say that, but you actually have to do that.”
In order to set up the unit in Tarrant County, Boswell said, she talked with multiple similar units across Texas, and the country, to see what their practices were. What sort of policies did they have? What was working? What problems had they encountered?
“What I discovered is, it was sort of all over the place,” she said. “That there wasn’t a manual, per se.”
Often overlooked in the conversation about exonerations are the victims, or the family members of the victims, of the crimes.
“I would think that they would have all kinds of feelings that would come up,” said Sandra Lydick, co-director of Fort Worth-based nonprofit Crime Victims Council, which helps counsel victims.
“Because all this time, they were thinking that this person who was in prison had done it,” Lydick said. “And now that’s going to bring up, I think, tremendous variety of feelings of confusion, of outrage, or sadness, sorrow, that the person did it is probably, or potentially, still at large.”
Nonetheless, Lydick said, the units remain an important, necessary balance of the justice system.
I would think that they would have all kinds of feelings that would come up. Because all this time, they were thinking that this person who was in prison had done it.
Sandra Lydick, co-director of Crime Victims Council of Fort Worth, Texas
“The person that was wrongly incarcerated was a victim too,” she said. “That puts a whole other complexity into the situation.”
Exonerations are happening at disproportionate rates across the country, data show.
In 2015, two review units – Harris County, Texas, and Brooklyn County, New York – accounted for more than half of the 60 exonerations that stemmed from conviction review units across the country, according to the registry.
Reasons for the disparity vary. Some counties established units less than one year ago and just now are beginning to reexamine cases. Experts say that exonerating a person can take several years.
And some units are still getting organized. The Travis County conviction review unit in Austin, Texas, was created in 2015, but there is still no website or phone number listed for contact purposes. The office consists of one investigator, one paralegal and four part-time attorneys who, in addition to reviewing past cases, have full caseloads.
Scott Taliaferro, director of the Travis County unit, said the office is trying to notify all defendants whose cases could be impacted by a new study released by the Texas Forensic Science Commission, an organization created by the Texas legislature that investigates abuse or neglect regarding crime laboratories.
The study showed issues with DNA testing in Austin that impacted 1,366 cases, dating back to 1985, Taliaferro said. Taliaferro and his colleagues sent notices to 866 defendants and they are working to track down the others.
More than 200 defendants contacted the unit requesting a re-investigation into their cases. So far, the unit in Travis County has not exonerated anyone. Taliaferro said they are focusing on cases that may be impacted by DNA issues. He declined to comment on specific cases or say how many the unit is investigating.
“We do the best we can,” he said.
Concerns about how many people work in the office and what type of caseload they can handle is not unique to Travis. Both Boswell in Tarrant County, and Patricia Cummings, chief of the Dallas County conviction review unit, said they’re concerned about how such a small staff could take on the responsibilities without letting any cases slip through the cracks.
“Oh my gosh,” Cummings said. “It’s so incredibly difficult. We’ve got more work than we can handle. And the hope is we will be able to get the funding to expand our unit to have more help.”
Oh my gosh. It’s so incredibly difficult. We’ve got more work than we can handle.
Patricia Cummings, chief of the Dallas County conviction review unit, on tracking the most important cases
And for some counties, it’s easier to go back and review old evidence. For instance, Tarrant County has had an open file policy since the 1970s, which allows the defense to access to files during and after trials.
“That, in the long run, has been very beneficial to us in that we didn’t expect, and we haven’t found immediately, these things that the defense didn’t know about,” said Samantha Jordan, a spokeswoman for the Tarrant County conviction review unit. “That alone has seen to really limit the number of requests that we’ve had come in, which is a great thing.”
The number of counties that have conviction integrity units represents less than 1 percent of counties across the United States. The units require staff and funding, and according to a report by John Hollway of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, most of those costs are funded from the existing budget of district attorney offices.
Annual allocations run as high as $1 million per year, in the case of the Los Angeles County unit. So it is no surprise that the units that do exist are concentrated in New York, California and Texas counties that tend to have bigger populations and bigger budgets.
The work can be slow and fruitless. Some units now say there is a dwindling number of cases that can be solved matter-of-factly with DNA evidence. Increasingly, the attorneys re-investigating cases are relying on pure investigative scenarios with little evidence to support the defendants’ claims of innocence. They hope for a day when their work is no longer required.
“Ideally you hope you reach a level at some point where you say, ‘OK, we don’t have to worry about this anymore.’ Obviously that’s the goal,” Cummings said. “But in the meantime, we’re human beings, and human beings make mistakes.”
Since the Tarrant County unit picked up John Nolley’s case almost a year ago, the 42-year-old man has walked free from jail, though he has not been exonerated in the case as investigators continue to look at new evidence.
The conviction was overturned and Nolley is out on bond, living with his family.
Eleanor Mueller and John Tompkins contributed to this report.