Grits for Breakfast has been posting about the Innocence Summit held in Austin.  That would be the one where Grits was made to sit in the back of the bus.  When things like this happen, it makes newspaper editorial writers remember that the same system that was wonderful yesterday can fail today.  And so Grits reports that the Dallas Morning News has backed the creation of an Innocence Commission.

It’s needed badly in Texas, which has 33 DNA-established exonerations to date, more than any other state. Seventeen are from Dallas County, more than in any other U.S. county.

News flashes about Dallas cases obscure the fact that local exonerations would not be achieved were it not for the sound practice of storing biological evidence in all criminal cases. No other Texas county has done that; one can only imagine how many wrongly convicted people from the 253 other Texas counties have no shot at DNA exoneration. A special commission could recommend best practices for evidence storage, among a long list of other law enforcement procedures.

It’s badly needed everywhere.  But while recognition that there is a problem is a first step, there is a much larger point that has yet to make it onto the editorial radar.  The DNA exonerations were critical to making it clear to lawmakers and the public that we are busily convicting innocent people, or somewhat innocent people as the case may be.  But for hard proof of innocence, something that rarely exists in the realm of criminal law, people have denied that this phenomenon really existed, and if it did, that it was so inconsequential as to be unworthy of greater concern.

The DNA cases have proven otherwise to everyone except Justice Scalia, who finds the level of collateral damage acceptable.  Without hard, irrefutable proof that innocent people were being convicted in significant numbers, despite the courts’ use of all the methods to assure the integrity of the process that appellate courts, prosecutors, experts and law professors assure us will guarantee that only the guilty are convicted, society would just ignore the whole problem.  Criminal defense lawyers would argue to the contrary, and everyone else would have a good night’s sleep.

So now we have a baseline to work with.  The people exonerated by DNA were given every protection our system has to offer.  And they were convicted anyway.  Between bad eyewitness IDs and testilying cops, Brady-withholding prosecutors and judges who will always go with the odds and side with the cops on a credibility call, the deck is just as stacked today as it was before. 

While an Innocence Commission is a great idea, and I’m all for anything that will bring greater integrity and transparency to the law enforcement/prosecutorial side of the equation, no one has as yet come up with a way to deal with the fact that the great mass of convictions won’t involve DNA, or smoking gun Brady violations.  People don’t always get convicted with a bang, but often a whimper. 

One punt on a credibility call will spell defeat for an innocent defendant.  One bad ruling on expert testimony blows a defense out of the water.  Identifications are always a source of problems, even if somewhat improved by sequential rather than the bad, a line-up, or, the worst, a show-up. 

We fall back on the way we’ve always done things, even though we know that they just don’t always work.  Why?  Because the system is based on the odds.  The odds are that the cops are more truthful then the defendants, so when in doubt, go with the cops.  The odds are that the ID is more likely accurate than inaccurate, so when in doubt, go with the ID.  People are always shocked to learn that judges don’t have some magic way to tell who is lying and who isn’t. 

And woe is the defendant confronted with the scientific expert.  Judges know nothing about science, and anyone with a few science courses can opine in court as if he’s just discovered the atom.  The breathalyzer is the perfect example.  Nobody has a clue how it works or if it’s accurate, but it’s conclusive proof.  If a little black box says you’re drunk, then you are drunk.  End of story.  You can’t argue with a box, and no judge anywhere will question the notion that the box is absolutely irrefutable evidence.

What I’m trying inartfully to get to is that while our system will be improved by post hoc revisitation, any real desire to stop the conviction of the innocent must start with the trial judge and the application of the “rules” that are now used to play the game as a real tool to vet the bad from the good.  The system is replete with vagaries that will never serve some Commission years later to distinguish good evidence from bad. 

If judges don’t stop playing the odds, siding with the cops and prosecution whenever an issue is in dispute, then innocent people will continue to be convicted.  If judges don’t stop worrying more about the reputations of cops and prosecutors than about the lives of the people before them, still more innocent people will be convicted. 

We have an Innocence Commission of one on every criminal case in America.  If our Innocence Commissioner does his job in the first place, we can make a dent in this horrible problem.  As long as judges continue to play the odds, no Innocence Commission can do enough to save us.