People get miffed when they realize they’ve been played. Then again, they realize it so rarely that it’s not really a big deal for those doing the playing. Come up with something that, in the first few seconds of attention, gives people that warm and fuzzy feeling and you own them.
It worked for people, as the SJWs swoon for Preet Bharara, Sally Yates, Jim Comey and Andrew McCabe because they were unceremoniously fired by Trump, without the slightest clue what they were doing with the rest of their prosecutorial and law enforcement careers. It works for DoJ consent agreements, which tell tragic stories and change nothing.
And it works for things with cool sounding names, like Conviction Integrity Units.
As prosecutorial reform has garnered more attention, many district attorneys have responded to the calls for change by creating CIUs. These conviction review teams have become more common — according to the report, there were 33 CIUs in 2017, “more than double the number in 2013, and more than six times the number in 2011.” (That list doesn’t include recently created units in Detroit, Michigan, and Jacksonville, Florida.) But while the number of CIUs is growing, they are still extremely rare. There are, after all, 2,300 prosecutor’s offices in America — meaning a whopping 98.5 percent of offices don’t have a CIU.
But as Josie Duffy Rice points out, the failure of 98.5%of prosecutors to have a CIU really isn’t a big deal.
Further, the mere fact that a CIU exists means very little — several have accomplished nothing. In fact, of the 33 offices listed in the report, 12 of them have never exonerated a single person. Another five offices have exonerated only one.
In Boston, Suffolk County DA Dan Conley has touted the importance of his Conviction Integrity Program. Last year, he awarded his office’s Unsung Hero award to the director of the program, Donna Patalano, stating that her “commitment to the interests of justice has helped us set a national standard with policies replicated by prosecutors across the country.” That Conley brags about this unit is baffling. Suffolk’s CIU has no full-time staff. It’s not even mentioned on the office’s website. And in six years, it has exonerated only one person.
Some CIUs do nothing. Some do slightly more than nothing. But what about the progressive District Attorneys who run huge offices with hundreds of thousands of cases under scrutiny?
The list goes on. Los Angeles County is the biggest county in the nation, yet in three years, its office has exonerated exactly two people, according to its report. Manhattan’s DA, Cy Vance, has exonerated just five people since 2010. Philadelphia has exonerated just three people in four years.
Five in Manhattan? Wowwy-kazowwy. Now we can all sleep better at night, knowing that five wrongfully convicted people have been exonerated. Justice, justice, shall Cy pursue.
It’s not easy to figure out who was wrongfully convicted. Cops and prosecutor hide the bodies well, and the mechanics of exoneration can be hard and time-consuming.
Exonerations can take years, and sometimes these offices are facing circumstances outside of their control. For example, in Texas, the post-conviction process “presents unique procedural hurdles to the innocence process,” according to a 2016 article written by former Harris County ADA Inger Chandler in the American Bar Association’s Criminal Justice magazine. “It’s not enough in Texas to believe justice would be served by overturning a conviction. Nor is it enough to say, ‘Had I known then what I know now, I would not have prosecuted this case.’” In Texas, there must be a constitutional violation to vacate a conviction.
And much as there often is a constitutional violation, such as hidden Brady or perjury, finding it and proving it aren’t nearly as easy to do as might appear when it does happen. More to the point, after someone is convicted, even falsely, there remains a couple of lingering problems. First, that even if there was some evidence that got deep-sixed, it doesn’t prove innocence. Innocence is really hard, often impossible, to prove, as one can’t prove a negative.
Second, there remains that institutional need for finality, even if it means that a few (
hundred thousand) innocent people have to take a bullet for the team. After all, the time to figure out whether you’re prosecuting the bad dude or the wrong dude is when you’re busy doing the prosecution, not ten 30 years later.
But reform-minded prosecutors aren’t unaware of concerns that, over the years, people have been convicted for crimes they didn’t do. DNA went and screwed it all up, providing proof that they were innocent when there was previously just a lot of carping and crying, but nothing to show a judge. And so they created these CIUs with the best of intentions, provided their intention was to make the public believe they were more Justice Jackson than Stonewall Jackson.
And people just love them prosecutors for being so concerned about justice. And in fairness, it’s not as if they accomplish nothing.
CIUs have done at least some good. According to NRE’s report, they’ve “helped secure 269 exonerations from 2003 to 2017; more than 80% [of which] occurred since 2014.” But many of these offices see tens, sometimes hundreds, of thousands of cases each year, and the evidence says that prosecutorial misconduct is far from unusual. According to the report, 60 percent of all wrongful convictions last year — including 84 percent of homicide wrongful convictions — involved official misconduct. And while official misconduct encompasses a large group, “the most common misconduct documented in the cases in the Registry involves police or prosecutors (or both) concealing exculpatory evidence.” If in 15 years, these units have identified fewer than 300 cases where a person was wrongfully convicted, they are certainly not effective enough.
It’s not enough. Not even close. But it serves to do one thing that should not be missed while you’re kvelling over your ever-so-woke reform prosecutor. Somebody went out of their way to make sure these innocent people were convicted in the first place.
It’s nice that they want to clean up these old messes, but are they cleaning up their new messes, where they can have a huge impact by seriously questioning whether the dude they’re prosecuting is so utterly evil that it’s worth putting the snitch on the stand to lie about them and make sure they’re convicted? The best way to fix conviction integrity isn’t going through old cases where there’s a doubt, but not prosecuting innocent people in the first place.