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Conviction Integrity Units, Innocence Commissions Tackle Wrongful Convictions, Prosecutorial Misconduct

by Steve Horn

Conviction integrity units, known as CIUs and sometimes referred to as conviction review units or CRUs, have in recent years become increasingly widespread in county prosecutors’ offices throughout the U.S. They sit alongside actual innocence commissions, which exist in several states and review claims of innocence among those who say they have received a wrongful conviction, both serving as safeguards set up to fend off wrongful convictions and prosecutorial misconduct.

Both have been subject to praise and criticism. Some say they can help halt the ability of prosecutors to win wrongful convictions, while others say they’re a step in the right direction but leave more to be desired. But it is undeniable that, at least to a minor degree, both have shown signs of promise for appellants in the U.S. legal system in getting a second look at their convictions, in some ways challenging the clout of prosecutors’ offices.

But what are CIUs and innocence commissions, exactly, and how do they work both theoretically and in-action?

CIU 101

To critics, CIUs are seen as inherently a conflict of interest and an example of the proverbial fox guarding the henhouse, given the unit is a sub-office in the very office charged with bringing criminal prosecutions and convictions – and is often politically rewarded for doing so. But to its proponents, CIUs – while imperfect – exist as a potential safeguard against overzealous prosecutors and a first step toward reining in the power of district attorneys’ and attorneys’ general offices.

CIUs have the ability to bring harsh criminal charges and sentence recommendations to judges. And often, due to the offices’ being inherently political and subject to the whims of electoral politics, the charges often fit within the “tough on crime” billing, regardless of the individual facts of any given case.

The first CIU was created in 2000 in the San Diego County District Attorney’s Office in what was called the DNA Innocence Project. The second one also was in California, created in Santa Clara County in 2004. Today, 27 CIU offices exist nationwide in 14 states and Washington, D.C., according to the Center for Prosecutorial Integrity. A 15th state and 28th CIU office also recently entered the fold, too, in Florida, with Jacksonville creating the state’s first CIU office. Major district attorneys’ offices throughout the country now have CIUs, including Cook County, San Diego County, Harris County, Los Angeles County, Brooklyn, Manhattan, Washington, D.C., Dallas County, Baltimore City, Wayne County Wayne County (which contains Detroit), and beyond. But for context, it’s important to point out that there are over 2,300 county prosecutors’ offices nationwide, so CIU’s exist in only a bit over 1 percent of district attorneys’ offices nationally.

A 2016 academic paper, the first of its type to do a comprehensive check-in on the effectiveness to-date of CIUs, explained what the offices may be capable of over time if they live up to their billing.

“CRU’s have the potential to showcase the criminal justice system working at its best,” wrote John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, in that 2016 paper titled, “Conviction Review Units: A National Perspective.”

“Done well, a CRU can be a force of good in the criminal justice community, a model that operates with objectivity and focuses on real-world truth to integrate adversarial viewpoints, analyze conflicting and complex information and address claims for individuals suffering from a State-imposed injustice.”

Innocence Commissions 101

While CIUs have gotten more attention as of late – perhaps because there are so many more counties in the U.S. than there are states and thus more local news coverage of them – innocence commissions also exist in states throughout the country, including in Florida, Connecticut and California.

For innocence commissions, the first one began in 2007 in North Carolina, known as the North Carolina Innocence Inquiry Commission. Other state legislatures, such as Hawaii, Massachusetts, Illinois, Texas, Alabama, New Jersey and Maryland  have taken votes on creating various formats for the commissions, but they have ultimately failed to pass. In Missouri, one bill – HB 1778, which calls for creation of a state Innocence Commission – is still pending and has yet to receive a hearing in either chamber of the state Legislature. Nevada’s legislature, meanwhile, proposed a bill (AB 401) in 2015 calling for the creation of district courts of inquiry, which would essentially act as a separate appendage of the state’s court system handling innocence reviews on a full-time basis, somewhat akin to North Carolina.

The idea behind both CIUs and innocence commissions came from the Innocence Network legal movement, which has law clinics in states throughout the country with a mission of appealing and overturning wrongful convictions based on the applicable legal principles in the case and factual innocence. Unlike the Innocence Network, though, which is composed of appellate attorneys working on behalf of their clients, CIUs and innocence commissions are part of the fabric of the government and are appendages of the state apparatus itself.

One academic, who in 2016 did a comprehensive look at the successes and setbacks of the North Carolina Commission to date, wrote about what he felt was the national legal potential for state-sanctioned innocence commissions.

“The key message is this—a state agency devoted to finding innocence can work in the real world if it has a commitment to neutrality and is perceived as such,” wrote Robert Mosteller, professor of law at the University of North Carolina School of Law in his 2016 paper titled, “N.C. Innocence Inquiery Commission's First Decade: Impressive Successes and Lessons Learned” published in the North Carolina Law Review. “With a demonstrated commitment to neutrality, broad investigative authority, and adequate resources, inquisitorial innocence commissions can add real value to the criminal justice process by finding wrongful convictions that eluded exposure through the adversarial model.”

Real World Impacts, Critiques

Both CIUs and innocence commissions have had tangible real world impacts for appellants. But they’ve also had real limitations.

In the case of the North Carolina Innocence Inquiry Commission, in order for it to review a case sent in by someone previously convicted of a crime at the trial court level, there must be both ”Credible and verifiable evidence of innocence” and “New evidence of innocence that the jury did not hear or that was not available prior to a plea.” Further, one must be convicted of “homicide, robbery, sex offense, or class A-E” felonies in order to apply for an innocence inquiry from the Commission, according to its website

A total of 10 innocent people have walked free as a result of the Commission.

Most prominently, perhaps, is the case of Greg Taylor, who served 17 years of a life sentence behind bars after being convicted in 1993 for the murder of a prostitute before ultimately winning his appeal in front of the Commission and becoming a free man. Taylor was the first man in U.S. history declared “innocent” by the U.S. legal system, as opposed to “not guilty” or freed on a so-called legal technicality.

The work done by the Commission would then go onto have value in another high-profile case not long thereafter. The Commission’s work in Taylor’s case – which implicated the fraudulent techniques used to secure the conviction by North Carolina State Bureau of Investigation’s blood spatter expert, Duane Deaver – was used in the North Carolina appellate case for Michael Peterson, who was convicted in 2003 for the murder of his wife Kathleen Peterson back in 2001.

After spending eight years in prison, Peterson was released upon appeal and granted a new trial by Judge Orlando Hudson because Deaver was a key witness for the North Carolina Attorney General’s office in securing a conviction against Peterson at the trial court level. Peterson would eventually offer an Alford Plea, which is a guilty plea without admitting actual guilt, and got off on time served during his retrial. Peterson’s story is, as well as that of Taylor, the subject of the documentary series “The Staircase,” now streaming on the movie service Netflix.

North Carolina’s Commission has eight members, all of whom are selected by the Chief Justice of the North Carolina Supreme Court and the Chief Judge of the North Carolina Court of Appeals. The members, according to the Commission’s website, include a “Superior Court Judge, a Prosecuting Attorney, a Defense Attorney, a Victim Advocate, a Member of the Public, a Sheriff, and two Discretionary members.” The website for the Commission further details that 2,432 claims have been filed by appellants. In 2018 alone, as of June 30, 124 claims have been filed with the Commission. In order to garner an exoneration from the Commission, first the Commission must complete a multi-step investigation, after which it chooses to hand the case to a three-member panel of judges or deny the claim. The panel has the final say over exoneration decisions.

Yet, the Innocence Inquiry Commission also finds itself subject to any which direction the political winds tend to blow. While the Commission has freed 10 people wrongfully convicted from prison, it also relies on funding from the state legislature’s budgeting process, as well as federal grant money. Both are pots of money that come and go. Back in 2015, the Commission nearly ran out of the cash it needed to operate optimally. The North Carolina Commission also has received critiques for lack of transparency for how it goes about screening cases and which cases get dismissed and why.

“The cases chosen for review are an impressive group, but that conclusion does not reveal whether others should also have been the subject of formal inquiry,” wrote Mosteller in the 2016 North Carolina Law Review article. “Substantial public information is available regarding the cases that reached formal inquiry. Little information is available on those where the Commission dismissed the claim after informal screening or preliminary investigation.”

The West Virginia legislature on August 13, 2018, approved 11 articles of impeachment against all West Virginia Supreme Court justices for alleged “wasteful spending, maladministration, incompetency, neglect of duty, and potential criminal behavior,” according to CNN.  

And elsewhere, commissions either have not been created (despite being proposed by state legislatures) or have become merely study commissions that offer recommendations and best practice ideas, but no real legal teeth or mandate for implementation.

That includes Illinois, where a commission was formed by then-Governor George Ryan in the aftermath of a spate of high-profile exonerations by death penalty appellants. The commission there, in place from 2000 to 2003, created real reforms for death penalty convictions through state legislation passed in 2003 as a response to recommendations made in a 2002 report it published but did not lead to the creation of a full-time governmental commission, à la North Carolina. A similar story can be told about Wisconsin and New York, which both created wrongful conviction study commissions in recent years, but neither of which have taken steps to actualize an entity with the legal clout paralleling that of North Carolina.

On top of all of that, the whole notion of “innocence” as the focal point of exoneration for both the Innocence Project movement and also entities like North Carolina’s Commission, as opposed to law enforcement and prosecutors not following legal protocol and a focus on things like overly harsh sentences compared to the nature of the crime, has rankled some. A vocal argument against centering appellate work exclusively on the issue of “innocence” came from Abbe Smith, Professor of Law and Director of the Criminal Defense and Prisoner Advocacy Clinic and Georgetown University Law Center, in her 2010 paper titled, “In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects.”

“The more we focus on those who can actually be proved innocent, the more we undercut the right of everyone to be presumed innocent unless the state proves otherwise. Our system of justice emphasizes proof, not truth, because of the value we place on individual liberty and our abiding skepticism of state power,” wrote Smith. “Convictions are wrongful even if the convicted person is guilty when there is demonstrable unfairness. Imprisonment is wrongful if the person in prison is serving a sentence disproportionate to the circumstances of the crime or who the person is or has become. Factual innocence has never been the gravamen of a wrongful conviction, and should not be.”

In the CIU sphere, some counties across the U.S. have put time and resources into making sure there is meat on the bones for reviewing and doing something about wrongful convictions. In Cook County, Dallas County, Harris County, and Brooklyn, over 90-percent of the total CIU-related exonerations nationwide have fallen under the umbrellas of those prosecutors’ offices, according to a March 2018 report published by the National Registry of Exonerations (See: CLN, June 2018, p.26). In Brooklyn, 24 exonerations have ensued due to the work of CIUs and 22 of them involved African-American exonerees. The numbers are even higher in Cook County and Harris County, with the work of their units having led to 33 exonerations since 2012 for Cook County and 132 in Harris County since 2014, according to the National Registry of Exonerations’ 2018 report. That report further details that 269 people in total have been exonerated under the auspices of CIUs.

But for CIUs, too, critics have pointed to shortcomings alongside those signs of promise.

That includes the fact that there are not more of them, and they are not a mainstay of every county prosecutors’ office nationwide. There is also the simple fact that in most counties, CIUs have not done much in the way of exonerating individuals, reviewing the fairness of prosecutorial practices, or doing much which is transparently obvious to the general public. In that way, critics say that those county CIUs serve as convenient public relations vehicles for prosecutors’ offices, a fig leaf of sorts while the status quo prevails.

In a March 2018 story published by the criminal justice focused news group The Marshall Project, some of the realities of the weaknesses of CIUs as they exist today were spelled out.

CIUs offer “limited redress, functioning more as an emblem of a cultural shift than a broad righting of wrongs,” wrote Marshall Project reporter Eli Hager in his piece. “None of these conviction review units have undertaken the far more ambitious task of examining cases where the conviction might be sound but the punishment doesn’t fit the crime. That would mean poking into the sentences sought by a previous generation of prosecutors whose reflexive stance, for decades, was often to seek maximum charges carrying hefty terms behind bars.”

The weaknesses identified for CIUs have led to alternative proposals by some proponents for tackling injustices that take place within the U.S. criminal justice system, in prosecutors’ offices, and law enforcement agencies.

Sentinel Event Reviews, Wrongful Conviction Division

In a 2016 academic paper published in the Albany Law Review titled, “The Path to Exoneration,” the two professors who co-authored the article proposed an alternative to CIUs aimed at leading to broader justice served within the criminal justice system as it relates to prosecutions. They say that the problem of overzealous prosecutions goes beyond the issues tackled by most CIUs, delving into the very heart of the practices of law enforcement itself and how it interacts with the prosecution. The alternative they identify to CIUs is called sentinel event reviews.

“Indeed, the fact that few, if any, jurisdictions have adopted sentinel events initiatives—in which teams of colleagues come together in a non-judgmental way to consider the sources and lessons of wrongful convictions and near misses—suggests that there is still much more to be done to change the culture, priorities and commitment of prosecutors and law enforcement so that they are increasingly willing to consider innocence claims post-conviction,” co-authors and professors Jon Gould and Richard Leo, of American University and San Francisco University, respectively, write in their paper. 

In that vein, the U.S. Department of Justice’s National Institute of Justice – surprisingly under the presidency of Donald Trump – has launched Sentinel Events Initiative, which gave a $1.6 million grant to the University of Pennsylvania in 2017 to perform reviews along the lines presented in the paper by Gould and Leo, or what the DOJ has called technical assistance reviews.

“Through the Sentinel Events Initiative (SEI), we are focused on learning from system weaknesses in criminal justice and transforming the culture into one of safety, transparency, and commitment to continual improvement,” wrote Howard Spivak, then the acting director and now the deputy director of the National Institute of Justice, in a report done by the Justice Department about its Sentinel Events Initiative. “The SEI is supporting the development and broad adoption of a rigorous approach that not only reveals system weaknesses, but also identifies high-priority areas where further scientific exploration can support system improvements.”

Yet another proposal brought forth in Iowa centers around tackling wrongful convictions not in prosecutors’ offices, but in another taxpayer-funded office, that of the Office of the State Public Defender. Named the Wrongful Conviction Division, it officially launched in 2015 under Republican Governor Terry Branstad. In Iowa, the Wrongful Conviction Division is working in partnership with the Midwest Innocence Project and the Innocence Project of Iowa to secure exonerations for those wrongfully convicted within Iowa’s criminal justice system.

“In Iowa, we have great confidence in our criminal justice system,” Branstad, now the U.S. Ambassador to China, said in a press release announcing the program in 2015. “However, even in a well-regarded system, we know issues can arise. The creation of the Wrongful Conviction Division within the State Public Defender’s Office, and its collaboration with the Division of Criminal Investigation and existing innocence organizations, will help us ensure that our criminal justice system gets it right.”  

Put another way, there are many ways to achieve positive results. The tide has shifted somewhat against all-powerful prosecutors’ offices, but much remains to be seen in the months and years to come as to what the extent of these reforms will be and how they will work on-the-ground, in cities, counties, and states nationwide. 

Sources: spd.iowa.gov, state.gov, ncjrs.gov, nij.gov, american.edu, external.ojp.usdoj.gov, usfca.edu, papers.ssrn.com, criminallegalnews.org, brooklynda.org, law.upenn.edu, huffingtonpost.com, law.georgetown.edu, innocenceproject.org, deathpenaltyinfo.org, illinoismurderindictments.law.northwestern.edu, netflix.com, innocencecommission-nc.gov, dailytarheel.com, wral.com, bustle.com, nytimes.com, americanbar.org, prosecutorintegrity.org, jacksonville.com, cookcountystatesattorney.org, latimes.com, sdcda.org, justice.gov, manhattanda.org, dallascountry.org, waynecounty.com, flcourts.org, scholarship.law.upenn.edu, ccfaj.org, jud.ct.gov, malegislature.gov, capitol.hawaii.gov, ilga.gov, capitol.texas.gov, alisondb.legislature.state.al.us, njleg.state.nj.us, house.mo.gov, thewrap.com, leg.state.nv.us, mgaleg.maryland.gov, law.unc.edu, scholarship.law.unc.edu, stattorney.org

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