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Last week, the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School published a report titled “Conviction Review Units: A National Perspective.” The report focuses on the emerging trend in which district attorney offices create an internal unit tasked with looking at the integrity of convictions in that jurisdiction. (The Open File has previously discussed the trend in several previous posts, including here and here.)

The report confirms our concern that many District Attorneys create conviction integrity units to provide a false impression of transparency, fairness and accountability that distracts attention from otherwise unethical behavior. Specifically, many units validate concerns about a lack of outside input in the process, a myopic bias towards innocence, and tight restrictions on access to meaningful review.

Informed primarily by semi-structured interviews with prosecutors in 19 offices with Conviction Review Units (called “CRUs” in the report, often referred to as Conviction Integrity Units or CIUs by the office’s themselves and in the media), the report examines how these units operate and how they should be evaluated. We have previously flagged “the checkered, nascent career of the Conviction Integrity Units . . . .” and stated that “the picture here is a mixed one.” The report largely corroborates this view, emphasizing that watchdogs and communities need to dig deeper before assuming a CRU is credible.

Early on, the report posits a distinction between those CRUs that provide substantive reviews and those that do not. Our sense is that very few fall into the former category, and even those deemed sincere by the report’s standards may not effectuate much of anything. Units doing poor work conduct “Conviction Review In Name Only” and are referred to as “CRINOs.” The report argues that legitimate CRUs must strive to operate with independence, flexibility, and transparency:

To address [] concerns, and to signify to all stakeholders that the CRU is a good faith attempt to accomplish the wide  variety  of  system  benefits . . . sincere CRUs should emphasize: (1) the independence of the CRU and actively support its  broad-based  mission  that  elevates  truth  and accuracy above judicial decisions and procedure; (2) the flexibility and freedom of the CRU to investigate broadly and deeply across allegations of actual innocence in its own discretion; and (3) efforts by the CRU to provide transparency with regard to its activities and impact.

CRINOs, the report says, fail to incorporate one or more of these values. We agree that a “CRINO  is  arguably  worse  than  no  CRU  at  all,  since  it . . . retards the progress of criminal justice accuracy and reform . . . .”

Outside Accountability

Perhaps the most critical guarantor of a CRU’s independence is the inclusion of outsiders —including well-respected defense attorneys and other criminal justice stakeholders not beholden to the prosecutor’s office—who can provide a key check on the inherent biases that may render a CRU ineffective from the get-go. Troublingly, 65% of CRUs that responded to the report’s question about external participation revealed that they have none. Anecdotally, we have seen that even when outsiders are involved, they can still be heavily undermined if not truly integrated into the unit’s operations and power structure.

Innocence Bias

Another way in which the report confirms our long-held concerns about CRUs is with respect to “cases that are not necessarily about clear actual innocence,” but instead reveal constitutional deficiencies in the State’s case. Unsurprisingly, all of the CRU leaders interviewed agreed that their core work was to identify authentic claims of actual innocence. While this may seem to be a reasonable priority on its face, the units are framed as being about much more than actual innocence—indeed, district attorneys have chosen to describe their work as being about conviction integrity. Cases like this one involving wildly unconstitutional conduct by the prosecutor during closing arguments show why limiting investigations to innocence claims falls far short of the mark.

This shortcoming is encapsulated by the fact that “[m]ost CRUs view the reassessment of certain charges to be a usurpation of the role of the original trier of fact.” In other words, if the trial-level prosecutor made errors in charging a case where there was some criminal activity but it was actually less severe than the charges suggested, most CRUs will not review the conviction. In this way, CRUs fail to address one of the main negative byproducts of unchecked prosecutorial discretion. As the report explains:

Perhaps the truest measure distinguishing a sincere CRU from a CRINO is its approach to cases that lack both conclusive evidence of guilt, and clear-cut evidence of innocence. In such cases, the CRU finds itself in an uncomfortable middle ground, conceding that the conviction lacks strength and may not add up to conclusive guilt, but recognizing that the facts are far from establishing actual innocence.

Inadequate Access to Review

Another key concern dealt with in the report is that CRUs may place significant constraints on who can file a petition for review. The more constrained the screening process, the more likely it will weed out legitimate claims unfairly. For example, CRUs may have a policy to refuse to review cases in which a defendant pled guilty. If guilty pleas preclude review, a CRU effectively ignores the reality that individuals sometimes plead guilty for reasons other than guilt, including, but not limited to: prosecutorial coercion; the outsized risk of going to trial; and bad advice from defense counsel. While most of the CRUs appropriately do not presumptively screen out cases in which the defendant pled guilty, many require individuals in these cases to provide more evidence than others to move the review process forward.

With respect to transparency, the report highlights the need for written protocols and a commitment to dealing with prosecutorial misconduct and Brady violations when they are exposed. If a CRU does not have a plan for Brady material—specifically disclosing it and where the defendant is no longer represented by counsel bringing it to the attention of a judge—the unit should be viewed as a CRINO. After all, “[t]he ability of those outside the DA’s Office to see what actions a CRU is taking and to understand the rationales behind those actions is what enables communities to verify the good faith of their CRUs—or validate their worst suspicions.” Cases like this one from Alabama demonstrate how prosecutors’ recalcitrance when it comes to disclosing Brady material will impede any efforts to correct unjust convictions, and reveal the inherent conflicts in a system where prosecutors are supposed to impose their own checks and balances.

The Quattrone Center’ report is useful for revealing the views of the district attorneys that are responsible for a number of CRUs throughout the country. Some of the metrics outlined by the report may also be helpful to media and the public in determining their value—or lack thereof. But, even as the report points out the variety of ways in which CRUs can be ineffectual at best and damaging at worst, it seems to give the prosecutors behind these units the benefit of the doubt. We are far more skeptical, recognizing the ways in which these units too often function as political cover for obstructionist DAs or a tool for garnering credit for work that they ought to be doing anyway.

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