Innocence, Inc.

When Jeff Blackburn, a founder of the Innocence Project of Texas and its chief counsel, tendered his resignation, it raised a storm of controversy. Jeff was gracious toward his organization, but it wasn’t his way to go quietly into the night.  He didn’t quit without reason, and yet he didn’t seek to tank the organization he built that had accomplished extraordinary things.  It’s not that the legal system in Texas is so much worse than anywhere else, but that they like killing people down there.

But then came an “announcement” that was more than he could take.  It hit the fan from three sides, the IPTX website, the Houston Chronicle and a blog, Grits for Breakfast.  Aside from Jeff, the other person who ran the show was the IPTX executive director, Nick Vilbas.  Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

While Nick remains, as far as he knows, Executive Director, having made a promise to stay on long enough to facilitate the transition to “new management,” and honoring his promise to do so, because honorable guys do that, the announcement hit hard.  There was a new Executive Director. Not just new, but one who had worked at IPTX before, but was “let go” as he just wasn’t worth keeping on.

He wasn’t a lawyer. He lacked a firm grasp of what lawyers do, grossly overestimating his knowledge of law and the legal system. He didn’t even like lawyers and had little respect for their efforts.  That didn’t stop him from promoting his own views, often naïve and puny, always self-aggrandizing, but not always with high regard for the truth.

Yet, there it was, in black and white, a new Executive Director was named, and he was going to lead the Innocence Project of Texas to a “new era.”  This was more than Jeff Blackburn could stomach.  I asked Jeff what all this meant, and in an email Jeff let loose.

Hey Scott,

Thanks for asking me to comment on Scott Henson’s post about his becoming the new Executive Director of the Innocence Project of Texas (IPTX), and, more generally, about what is going on down here.

To the casual reader of “Grits for Breakfast,” everything must seem just peachy in Texas: we learn that there has been a “significant bout of staff turnover” at IPTX and that Scott, my “longtime friend,” has agreed to step in and become the new leader. In a gushy article in the Houston Chronicle, it is even suggested that his ascension will usher in some sort of “new era” of reforms at a “crucial” time.

That’s ok so far as it goes, I guess. The problem is that it doesn’t go anywhere at all. This post, like the IPTX’s official line on why I left, fails to explain why these events have happened, what is happening to the “innocence movement” in Texas and around the country, and what it means for criminal defense lawyers.

That’s a mistake. Big changes are going on in criminal defense and criminal justice reform right now, and what is happening in IPTX is only a small example. We need to discuss these changes freely and out in the open. Your blog is about the only place that can be done, and I sincerely thank you for that.

Here’s my contribution to that discussion:

Ten years ago, we created IPTX to be a fighting organization of criminal defense lawyers that could win cases, then use those victories to get statutes passed. We had a very clear, lawyer-driven, guerilla strategy. After a fair number of setbacks and missteps over the years, it worked- we got a lot of people out of prison, got some good stuff passed in the legislature, and managed to take our long-shot victory in the Tim Cole case all the way to getting a statue built in his honor and, now, an official commission named after him.

As lawyers, we knew what mattered to criminal defendants and what did not. We did all of this without getting co-opted into the state government even though we got a $100,000.00 per year payment from it through our Texas Tech clinic. We also avoided getting suckered into advocating minor, inoffensive reforms and calling them big just so we could say we had done something- a standard practice in Texas and one that Scott (Henson) is intimately familiar with. We picked, we chose, and overall we did pretty well. Of course, we were broke all the time and it required loads of unpaid effort, but who the hell was counting hours or money? It was the right thing to do and it made us feel fully alive.

While we were doing that some big changes happened. These changes put our ideas about IPTX on a collision course with the reality of power and money. Eventually, they would blow the whole project apart.

Three things happened:

1. The New York-based Innocence Project transformed itself into a multi-million dollar-a- year business replete with professional fundraisers, plaques for lawyers from Goldman Sachs, and $100,000.00 per table galas. These people began to do things that were solely designed to get publicity and make them money. They overstated the nature and extent of problems in forensic science. They exaggerated the number of wrongful death penalty convictions. They tried to kill good legislation.

Some of this behavior, all of which was done arrogantly and without ever even consulting us, messed up relationships we had formed with law enforcement officials. All of it messed up our ability to raise money for our work in this state. Finally, the New York people changed the structure of the national “Innocence Network” to allow them to be in full control. Do they still have good lawyers who do good work? Absolutely. Has that part of their operation been eclipsed by their United Way-level need to keep getting more and more money and please donors? Totally. Is there an innocence “movement” anymore? Not really. There’s just Goldman Sachs and business, baby, business.

2. Even bigger changes occurred during this period within the criminal defense bar as a whole. As a result of major sociological changes, criminal defense lawyers are now either fabulously-well-to-do lawyers that represent fabulously-well-to-do defendants, clowns with overblown websites who aspire to be fabulously-well-to-do lawyers, or incompetent, faceless drabs doing court appointments for a few hundred bucks a throw. There are plenty of us in the middle, of course- good lawyers who do good work because we believe in it- but our voices are increasingly drowned out. The big, top-down outfits like NACDL and our state group in Texas, TCDLA, reflect this shift- the seminars are slicker and more expensive, the big shots are praised more lavishly, and the efforts to get money from people like the Koch brothers or the government are more strenuous and frequently successful. So what’s wrong with all that?

Everything: criminal defense lawyers, whether we get it or not, are the canaries in the coal mine of this country’s government. Our calling and purpose is to sound the alarm against repression, organize resistance to it, and defend the interests of the poor slobs who don’t know any better out there. Are our national and state organizations doing that? Not really. Are we doing it on our own in our towns and cities? Not really, and damn sure not enough.

3. While facing these pressures, there was something even more insidious: the drive of the government in Texas to co-opt innocence work and housebreak the IPTX. The most recent example of this is the creation of the Tim Cole Exoneration Review Commission, a move being heralded as some sort of breakthrough in criminal justice reform. IPTX will be given a rotating token slot on this “Can’t-And-Won’t Do” commission, which will undoubtedly declare before long that the “problem” of wrongful convictions is “solved”. Does anyone want to bet that this commission will come within forty miles of dealing with the real reason people get wrongfully convicted in this state- our lack of a public defender system?

IPTX was faced with a choice in the face of these pressures- either go along and get along or change direction and break free of the hypocrisy. Nick Vilbas, the just-replaced Executive Director of IPTX and I wanted us to change direction. We wanted to break from the big-money phoniness of both the New York people and the leadership of the criminal defense organizations. We wanted to find a way back to the heart and soul of the criminal defense lawyers we are and believe in being. We chose to resist, even to the point of refusing money for the law school operation, getting co-opted by the government in Texas.

We lost that vote. The others won. I quit over it, and Nick will be out soon enough.

The folks who chose to stay in IPTX are good, well-intentioned lawyers. Scott Henson is indeed my old friend, and I wish him well with his “new era”.

My idea of a “new era” is a lot different than his, however.

My idea of a “new era” is one in which criminal defense lawyers start organizing at the local level for political change- change that can politicize the criminal justice system by demanding better indigent defense, citizen’s oversight of cops, bail reform, and a host of other things that can bring this repressive system to heel.

My idea of a “new era” is one in which criminal defense lawyers can reclaim their roles, their value to the community they live in, and their personal and professional worth.

My idea of a “new era” is one in which we truly are liberty’s first, and last, champions.

Is that era at hand? No. But it is damn sure worth fighting for.

Thanks for asking me about my thoughts, and thanks for your time and attention .


Jeff Blackburn
June 16, 2015

This was the “polite” version of what Jeff had to say. I’ve printed it in full, without interim commentary, so that my words or thoughts don’t impair his message.  There will be time for that later.

20 thoughts on “Innocence, Inc.

  1. Andrew

    This post is beyond troubling. The Innocence Project is the gold standard. Trying to wrap my head around Jeff Blackburn’s issues, then running head first into what the IP has accomplished, is almost impossible to reconcile.

    1. SHG Post author

      That’s the problem Jeff faces, and the point at which the outsider becomes the insider, the need for funding to do good works ends up becoming a priority of funding over good works, etc. The Innocence Project has become a beacon within the criminal justice world, but the question is whether that has corrupted its work and purpose, whether the need to feed the animal has turned it from wild to domestic.

      These are deep, hugely disturbing ideas, and they fly in the face of conventional wisdom, that you don’t smack an icon of Innocence because of the damage it does to the core concept. But then, if the icon has lost its way, do you just remain silent, play along, collect the money and wait for someone to build a statue? Is that what this is all about?

  2. st

    Scott Henson’s post says “The group’s office will soon be moving to Austin from Lubbock..”

    Texans know Austin is the seat of political power, and radically different than the rest of the state. I was once warned that “Austin politics are left of Che Guerra’s!” while the rest of Texas is rather conservative. A move towards political power is exactly what Jeff warns about. This move supports his assessment.

    1. SHG Post author

      Some people believe that all answers lie in the state house rather than the court house. They adore politics, and being close to what they perceive to be “power.” Others want to stay as far away as possible, or at least no closer than they absolutely have to be.

  3. John Barleycorn

    I wonder if a nucleic acid amplification test could be modified to sort out the different possible time horizons of criminal justice decay/reform?

    In the meantime the cheap seats wonder if an all out civil war of sorts isn’t well past aligning itself while the big money ponders the futures markets of “appearance” while hedging token “perception”.

    If so it would be very difficult to argue that diplomacy within the judicial branch at this juncture will achieve anything other than buying a little time. And frankly there might not be that much time left to bargain with.

    Especially when one could argue that the bacteria theory of the executive branch powers is poised to align with the virus theory of the legislative branch powers to create whole new concept of what constitutes fair play, let alone liberty and justice for all.

    Shouldn’t be too long now before CDL’s are not only forsaken by rest of their guild, including the bench, but openly considered and portrayed as
    black-marketeers. It’s gonna be tough for you guys to live in a decent neighborhood in the near future especially one with a homeowners association agreement.

    Perhaps, you should hold onto that tan suit of yours after all esteemed one. It might make for a cool guerrilla warfare uniform if you refuse to take it to the cleaners from here on out.

    In the meantime isn’t it about past time for some crowd sourcing of a law school that incorporates Ju Jutsu?

    All kidding aside I hope this squall isn’t disguising a very uncomfortable and dark horizon.

    1. SHG Post author

      Me too, but which is why it’s better to try to bring it into the open than pretend everything is wonderful.

  4. Greg Lubow

    Jeff’s comments cast an interesting light on some recent developments in the NY sausage machine known as the legislature. A couple of weeks ago the Law Journal covered a press conference where the IP and the NYS District Atty’s association and the NYS Bar Association announced an agreement between the 3 of them to support 2 proposed changes to the criminal procedure law , otherwise not related to each other.
    The defense would get mandatory recording of all interrogations (which is coming anyway – the public expects it); in exchange the prosecutors would get a change in the use of ID procedures (a very long time goal of theirs) so that they could introduce the ID procedure on their direct case, currently prohibited as bolstering. In the meantime long overdue discovery reform among other changes that will significantly reduce wrongful convictions continues to be opposed in the legislature (Senate) by the prosecutors.
    It’s not clear if the State Bar’s Criminal Justice section was part of the conversation that resulted in this ‘agreement’ and apparently many criminal defense organizations were not consulted as it was being negotiated.
    How the IP came to speak for the criminal defense bar is unknown, but Jeff’s cautionary tale raises serious concerns.

    1. SHG Post author

      To the extremely limited extent this applies to the post, you bet your ass that this “deal” negotiated by the IP as if it speaks for the criminal defense bar is a “cautionary tale,” to say the least. What a shame that NY no longer has a credible and relevant voice for the defense bar (yeah, I know about Larry’s email on the listserv), so IP filled the gap.

      Who authorized the IP to negotiate away defendants’ rights? What arrogance made IP think it could speak for anyone? Well, it’s the Innocence Project, and surely that speaks for itself. A very cautionary tale indeed.

    2. Sgt. Schultz

      [Ed. Note: No, you don’t. First, Greg is an old friend, so I give him a little more latitude than some others. Second, if I want to trash him for being off-topic, I’ll do it myself. And yes, I know he was off topic, but at least it peripherally tied into the post.]

  5. Fubar

    Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

    Translated from newly discovered manuscripts, considered by some to be lost works of Diogenes of Sinope, although others believe them modern forgeries:

    This most humble advice should illumine
    Every nobly inspired legal crewman:
    Things get hinky and funny
    As soon as real money
    Appears on the table. It’s human!

    When the state fears your idea’s infective,
    It always becomes self-protective.
    If attacks haven’t chopped you,
    It tries to coopt you,
    To render your work less effective.

  6. Robb Fickman

    A great explanation by Jeff.

    I have been in this mix for awhile.
    There are two kinds of lawyers who
    ” get involved”.

    The first is the true believer. The true believer sees the hypocrisy of our farcical , disgraceful, self- perpetuating, aptly named ” criminal” Justice system. This lawyer is ,outspoken and he will not compromise on matters of principal. This lawyer is the one who makes enough noise to make those in power react.

    The second kind of lawyer who gets involved, is more politician. This lawyer shares ideology with the first lawyer. But this lawyer is different. This lawyer is willing to compromise on principle.
    This lawyer has ideology but he also is ambitious and he uses causes more to promote himself than the principle.

    The first lawyer causes reaction by the authorities. But the authorities don’t want to meet with the first lawyer. They despise the first lawyer in that he will not relent in his attack on their system.
    When forced to act like they are doing something, those in power never invite the first lawyer to the table. The first lawyer would show up with a chain saw and cut the table in pieces. He is the catalyst of change, but he is never invited to the table.

    The second lawyer, the one wiling to compromise on principle , is who the authorities turn to. They invite him to the table and are thus able to claim they are dealing with the problem. The second lawyer is overjoyed to have a seat at the table. It gives him cache among some and he is all to willing to sell out principle for a photo-op with those in power.

    The first lawyer is a man. The second lawyer is a worm. We all know who the men are and we all know who the worms are. If you are unsure, just look at the photos of whose bear-hugging the oppressive authorities.

    Jeff is a man and it sounds like he got sick of the worms. That happens.

    Robb Fickman

      1. Robb Fickman

        Gandhi said

        ” The function of a civil resistance is to provoke response and we will continue to provoke until they respond or change the law. They are not in control; we are.”

        I think these words guide the first lawyer and they are lost on the second.

      2. Alex Bunin

        Robb, Jeff and Scott are definitely “first lawyers.” I’m not sure where that leaves me.

        1. SHG Post author

          I know that when the chips are down, you always put principle first. I know that you never put anything ahead of the clients you serve. Even though you also get invited to the party, you are a “first lawyer.”

  7. rod hobson

    sometimes it is hard to tell the good guys from the bad guys; at the ceremony dedicating the statute of Tim Cole (in Lubbock), Jeff was there (definitely a good guy); in the audience–Judge Jim Bob Darnell- the same man who prosecuted Cole and sent an innocent man to prison to die; nothing ever happened to him for his role in the debacle, indeed he is now a judge who didn’t even have an opponent in the last election and who has never publicly apologized for what happened; also present were a slew of politicians, DA’s and criminal defense attorneys wanting to be seen as on the “right” side even at the expense of an innocent man. I guarantee you that if Tim Cole were tried in Lubbock tomorrow on the same evidence, with his same shitty lawyer, the result would have been exactly the same. In short, nothing has really changed here except we have a statute and several people feeling good and getting their picture in the paper and claiming that things have changed; the Innocence Project was too good to be true- the government had to co-opt it otherwise, it was a matter of time before someone was able to prove that Texas has executed several innocent people; this way Jeff is out and they (government) will be able to do business which means protecting their own sinecure and pretending they care about the rights of the accused; in a few years there will no longer be an innocence project as the politicians will have solved all the problems of the criminal justice system–at least according to them. Jeff will ride on to other challenges–tilting windmills is much more fun than owning them.

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