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As we reported yesterday, Cuyahoga County Prosecutor Timothy McGinty is the latest district attorney to launch a conviction integrity unit in his office to review cases of possible wrongful conviction. Dallas County District Attorney Craig Watkins was the first to create such a review system in 2007.

It’s very encouraging to see prosecutors’ offices taking this step to correct prior errors, whether those errors were made knowingly or unknowingly. But there are also limits to this kind of self-policing.

Last month, The Crime Report highlighted some of those limitations in an excellent in-depth article by Hella Winston on conviction integrity units around the country. It seems that the major factor determining the usefulness of these units is whether the district attorney is willing to place it under the control of an independent arbiter.

We have included an excerpt from the article below, but it is well-worth a full read at The Crime Report‘s website here.

 

Wrongful Convictions: Can Prosecutors Reform Themselves?

By Hella Winston, March 27, 2014

…While Conviction Integrity Units can play an important role in implementing much needed “front-end” reforms—including enhanced training, better discovery-related policies and procedures, the use of videotaped confessions and improved practices related to eyewitness identification—their value in evaluating post-conviction claims of innocence is much more questionable, particularly in cases that don’t involve DNA.

Indeed, lawyers with experience working with CIUs point not only to their criteria for re-evaluating a case, but also to their structure and staffing, as major obstacles to their ability to function effectively.

Although these various units are all involved in reviewing possible wrongful convictions emanating from their own offices, they differ in terms of their criteria for post-conviction review.

Standards for Review

While Dallas, Manhattan and Santa Clara all hold as their standard of review whether there is clear and convincing evidence for a plausible claim of actual innocence, the Dallas CIU has noted that it would relax this standard if a post-conviction investigation uncovered “glaring constitutional errors ” at trial, even if those errors did not clearly relate to guilt or innocence—a standard that seems consistent with Thompson’s proposed plan to look at “gross violations” of a defendant’s constitutional rights.

Moreover, unlike Dallas, Manhattan will not reinvestigate a case if a defendant knew or should have known at trial the basis for his current claim—a standard that can, in effect, punish the defense for what is often the failure of prosecutors to turn over certain material to them, or for ineffective assistance of counsel.

Some CIUs will not look at cases in which a defendant pleads guilty, regardless of research that shows that coerced or false confessions are a common cause of wrongful convictions.

Perhaps even more important, there is no uniformity in how these units are structured and operate. For example, while the Dallas CIU—which is headed by a highly regarded former defense attorney—works in collaboration with defense attorneys, local innocence projects and law students, the Manhattan CIU, with a prosecutor at its helm, conducts all of its post-conviction reviews internally.

To veteran defense attorney Ron Kuby, who has worked with DA Conviction Integrity Units in Manhattan, Brooklyn and Nassau County, the Dallas model is far superior.

“Number one, [in Dallas there is] complete transparency,” Kuby told The Crime Report.

“Both sides share all of their information. We get everything in their file, they get everything in our file, except certain privileged communications. And second, the investigation is undertaken in a collaborative way.

“We sit down together and we discuss witnesses. And we discuss…what would be the best side to approach this witness. Should we do it together? Should the defense pursue this witness because frequently the defense is able to win trust where the police don’t, or should the police pursue this particular witness?”

Going to Court

After representing witnesses in a case that was brought to the Manhattan CIU, Kuby decided that he would never bring a case to that office again. In fact, he has concluded that, whenever possible, going to court is the preferable route because in that arena, armed with subpoena power, “it’s easier [for the defense] to convince a judge that a result would have been different at trial than to convince a prosecutor.”

According to Kuby, “[Prosecutors] look for evidence to support the conviction. And defense lawyers who are foolish enough to cooperate with them end up serving up their witnesses, and [then the DA goes out and collects impeachment information] on [those] witnesses.

“The truth is, the hallmark of great lawyering is making a totally truthful person look like a liar.”

Lonnie Soury, a public relations expert who has worked on numerous wrongful conviction cases, including those of Martin Tankleff, The West Memphis Three, Jesse Friedman and Jon-Adrian Velazquez, agrees.

“There’s an underlying hope that prosecutors, when exposed to what you believe is strong evidence will say ‘ah ha, this is really compelling.’”

But, according to Soury, this has not been the reaction in the cases he has worked on.

In the case of Velazquez, whose murder conviction was recently reviewed and upheld by the Manhattan DA’s CIU, Soury noted that “[the process] was adversarial.”

“[Defense attorney] Bob Gottlieb turned over witnesses to whom the real killer confessed,” Soury continued. “They exposed themselves, these witnesses came to New York, and they were treated horribly, like defendants. These were witnesses who had a lot to lose. They knew the murderer.” Gottlieb has since filed a 440.10 motion, or a motion to vacate the conviction based on newly discovered evidence.)

Gottlieb, who was appointed in 2008 to the New York State Bar Association’s Task Force on Wrongful Convictions, concedes that the concept of a DA remedying wrongful convictions is “noble”—but he adds there is an “inherent conflict in having an integrity unit in a DA’s office and staffed by prosecutors who are involved in other investigations, in cases, other than examining prior convictions.”

In the Velazquez case, where there was no DNA or physical evidence that could be re-examined, Gottlieb was, he believed, at a significant disadvantage with the CIU. (At least until now: according to Gottlieb, recent scientific advances suggest that some evidence in the case can be tested, something he is now pursuing).

 

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