Texas Justice: 22 Years on Death Row

By William Fisher

An increasing number of headlines these days seem to start the same way: Joe Smith, wrongfully convicted of murder in 1989, walked out of prison today, a free man after more than two decades on Death Row.

That’s the good news. The double-whammy of bad news is that thousands of wrongfully convicted men and women are serving long sentences for crimes they did not commit – and at least one of these free men is not really free. Which doesn’t make putting his shattered life back together any piece of cake.

He is Kerry Max Cook, 56, whom Texas still considers a convicted murderer. Cook was convicted of the 1977 raping and murdering Linda Jo Edwards in Tyler, Tex. He’s had three trials: a first conviction that was reversed, a hung jury outcome in a second trial, and a third conviction that was overturned because it was found to be tainted by prosecutorial misconduct.
Prosecutorial Misconduct: A phrase you will find many times in this article.

While Smith County was considering a fourth trial for Cook, he entered into an unusual plea bargain. In 1999, under a bizarre Texas law, he pleaded “no contest” – neither an admission of guilt nor a profession of innocence – and walked out of jail.
DNA tests on the victim’s clothes eventually shone light on another man’s biological matter.

To Texas lawmen, however, Cook is a convicted murderer – no more, no less. Which means he is usually unable to find steady employment and experience the normal, everyday life of a non-felon.

“Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name. This freedom means nothing with a conviction,” said Cook. He is seeking new DNA testing to establish his innocence..

Cook’s anger-making story is part of a landmark report from the National Registry of Exonerations. The new institution, a partnership between the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, reveals that more than 2,000 wrongfully convicted individuals have been exonerated nationally since 1989.

The Texas Tribune has published a report by Brandi Grisssom, analyzing Texas cases involving prosecutorial misconduct but where the state bar has failed to take any action against the lawyers.

The item opens:

“In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today. None of those prosecutors has ever been disciplined.”

The Tribune noted, “It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.”

In Texas, Ridolfi told the Trib, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.

Key Findings from the Report:

Snapshot figures of the 873 exonerated defendants:

93% are men, 7% women; 50% are black, 38% white, 11% Hispanic and 2% Native American or Asian; 37% were exonerated with the help of DNA evidence; 63% without DNA; as a group, they spent more than 10,000 years in prison – an average of more than 11 years each.

Since 2000, exonerations have averaged 52 a year – one a week – 40% of which include DNA evidence.

DNA exonerations are increasingly older cases: The average time from conviction to a DNA exoneration is now about 18 years, up from less than 7 years in the early 1990s, and murder cases – since 2008 most DNA exonerations are murder prosecutions, usually rape-murders, rather than sexual assaults.

The exonerations in the Registry are unevenly distributed geographically. They concentrated in several states, led by Illinois, New York, Texas and California.

Some counties, like Cook (Chicago), Illinois, and Dallas, Texas, have dozens of exoneration; other counties with millions of people, like San Bernardino, California and Fairfax, Virginia, have none. Neighboring counties are often very far apart. Santa Clara County, California – home of the Northern California Innocence Project – has 10 exonerations; directly to its north, Alameda County has more violent crime but no known exonerations.

The 873 exonerations are mostly rape and murder cases, but the data also include 18-20 many more exonerations for other crimes than previously known. All told, we have:

48% homicides (416) including 12% death sentences (101)

35% sexual assaults (305)

5% robberies (47)

5% other violent crimes (47)

7% drug, white collar and other non-violent crimes (58)

Causes of False Convictions

For all exonerations, the most common causal factors that contributed to the underlying false convictions are perjury or false accusation (51%), mistaken eyewitness identification (43%) and official misconduct (42%) – followed by false or misleading forensic evidence (24%) and false confession (16%).

The frequencies of these causal factors vary greatly from one type of crime to another. See Table 13.·Homicide exonerations: The leading contributing cause is perjury or false accusation (66%) – mostly deliberate misidentifications (44%).n Homicide case also have a high rate of official misconduct (56%). Homicide exonerations include 76% of all false confessions in the data.

Some exonerees were falsely implicated by a co-defendant who confessed. Including such cases, the convictions in 39% of homicide exonerations were caused in part by false confessions.

Juvenile and mentally disabled exonerees were, respectively, five times and nine times more likely to falsely confess than adult exonerees without known mental disabilities.

Sexual assault exonerations are overwhelmingly cases with mistaken eyewitness identifications (80%).

53% of all sexual assault exonerations with mistaken eyewitness identifications involved black men who were accused of raping white women. This huge racial disproportion (about 10 to 1) is probably caused primarily by the difficulty of cross-racial eyewitness identification.

Many sexual assault cases also include bad forensic evidence (37%).

Child sex abuse exonerations, by contrast, primarily involve fabricated crimes that never occurred at all (74%).

Robbery exonerations (like adult rape exonerations) are overwhelmingly cases with mistaken eyewitness identifications (81%).

The small number of drug crime exonerations we have found (25) include a high rate of deliberate misidentifications (48%).

Most individual no-crime exonerations are sexual assault cases in which the complaining witnesses fabricated crimes

Most fabricated crime exonerations are child sex abuse cases (70).

Two-thirds of the child sex abuse exonerations are child sex abuse hysteria convictions from the 1980s and early 1990s.·

Group Exonerations

By far the largest concentrations of no-crime cases are group exonerations: At least 1,170 defendants were exonerated in the aftermath of the discovery of 13 major scandals around the country in which police officers fabricated crimes, usually by planting drugs or guns on innocent defendants. We are confident that there are others that we have not yet identified.

Overall Frequency of False Convictions and Exonerations.

There is no way to estimate the overall number of false convictions from these reported exonerations, but it is clear that there are many more false convictions than exonerations.

The exonerations that we know about are: Overwhelmingly rape and murder cases in which defendants went to trial rather than plead guilty and received very severe punishments, especially death sentences.

They are also: Concentrated in several states and a small number of counties; disproportionately likely among the small fraction of criminal cases in which DNA evidence can prove guilt or innocence, and often the result of unpredictable and improbable lucky breaks.

Obviously there are many more false convictions among cases that don’t fit that description, and that didn’t end in exoneration: lesser crimes than rape or murder; defendants who pled guilty and received comparatively mild punishments; cases in states and counties with few exonerations or none; cases without DNA evidence; defendants who were just unlucky.

According to The Texas Tribune – a non-profit public service newsgathering and reporting organization -- The Registry lists 891 exonerations in the United States since 1989. It is thought to be the largest database of exonerations ever compiled.

Of the 873 who are covered in the report, 93 percent are men. Half are African-Americans. Thirty-seven percent were exonerated due to DNA evidence.
Juvenile and mentally disabled individuals who were freed were, respectively, five and nine time more likely to falsely confess, sometimes under duress, than other groups.

Most exoneration cases involve rape and murder, including 12 percent in death penalty cases. That last statistic implicitly raises the possibility that innocent men may be awaiting execution on death rows across America. Some may even have been wrongfully executed.

"The most important thing we know about false convictions is that they happen and on a regular basis," University of Michigan law professors Samuel Gross and Michael Schaffer, co-authors of the study, said in the report.

The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome.

The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.

In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.

Since 2000, there has been an average of one exoneration per week in the United States. But those who languish behind bars have spent more than 10,000 collective years in prison for crimes they did not commit, an average of more than 11 years per person.

The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might
prevent future wrongful convictions.

According to the report, the main causes of exoneration are perjury or false accusation (51 percent), followed by mistaken eyewitness identification (43 percent), official misconduct (42 percent), false or misleading forensic evidence (24 percent) and false confession (16 percent).

As of January 1, 2012, there were 3,189 people awaiting execution in the United States, which executed 43 people in 2011. Only four other countries-- China, Iran, Saudi Arabia and Iraq-- put more people to death, according to Amnesty International.

The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86

The report uses a conservative definition of exoneration. Only formal decisions by courts and executive officers count. It also highlights at least 1,170 defendants whose convictions were thrown out in group exonerations, usually resulting from police scandals, bringing the total number to over 2,000. Those freed in group exonerations, however, are not included in the National Registry.

Meanwhile, a coalition of such organizations as the Innocence Project has embarked on a first-of-its-kind series of visits to major U.S. cities to meet with lawyers, judges, law professors and other public interest figures to consider policy and practice options that would discourage prosecutorial misconduct. The group has thus far visited California, New York, Texas and Louisiana.

The coalition has found that courts, state bar associations, and other official organizations dedicated to protect defendants’ rights, take virtually no actions against prosecutors suspected of misconduct.

And, in arguably stronger evidence that the power of prosecutors in finally beginning to lead to misgivings among other lawyers, as well as judges, bar associations and law schools, Texas Supreme Court Chief Justice Wallace Jefferson has ordered a court of inquiry to investigate whether the former Williamson County District Attorney violated Texas law by refusing to turn over evidence that could have prevented Michael Morton from serving 25 years for a murder of his wife that DNA evidence has now proven he didn’t commit. The court of inquiry will begin in September.

Michael Morton walked out of a Williamson County courtroom today after his 1987 murder conviction was overturned because of new DNA evidence pointing to another man. Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.

It isn’t often that a story about prosecutorial misconduct ends up even as half-heartedly punitive as this:

Richard Convertino is a former federal prosecutor in Detroit, Michigan. Convertino was the lead Assistant U.S. Attorney in the "Detroit Sleeper Cell" prosecutions of Karim Koubriti and Abdel-Ilah Elmardoudi. However, the U.S. Department of Justice subsequently removed Convertino from his position and asked courts to dismiss those convictions, on the grounds that Convertino had failed to disclose evidence to which the defense was entitled. Convertino is still practicing law privately.

What should be our takeaway from all this?

There are thousands of prosecutors in the U.S. As we appear bent on stuffing every one of our federal, state and local lockups with inmates – mostly non-violent drug-users – the prosecutors’ caseloads will inevitably increase.

As they do, more and more mistakes – and misconduct – will surface. And more and more people will be fraudulently incarcerated.

Some important initiatives have already started to take hold. For example, since his election in 2006, Dallas County District Attorney Craig Watkins has made a very public commitment to reform. The ACLU of Texas says he deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past.

The current tour by the innocence coalition is likely to produce more ideas worth considering.

But the linchpin of real progress against over-zealous prosecutors has to be the Bar Associations of the 50 states. Our prosecutorial bar will be perceived as weak and uncaring until these peer groups are ready to use their power to aggressively weed out bad behavior.