In a hearing on Wednesday that was as performative as it was embarrassingly ill-informed, Senate Republicans tried to blame one of President Joe Biden’s judicial nominees — Nina Morrison, an attorney with the Innocence Project who has freed dozens of innocent people from prison — for driving up violent crime across America.
Morrison, 52, is up for a lifetime seat on the U.S. District Court for the Eastern District Of New York. She is the senior litigation counsel at the New York-based Innocence Project, an organization focused on exonerating wrongly convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.
She has been lead or co-counsel on cases that have freed more than 30 innocent people from prison and death row.
But Republicans in the Judiciary Committee went after Morrison as if she had committed the crimes that her clients were convicted of — that they didn’t actually commit, either. They tried to blame her for recent spikes in violent crimes in cities, and pressed her on whether she felt guilty about freeing people from prison who had been convicted of violent crimes, glossing over the fact that they had been exonerated by DNA evidence.
“The whole of your record is deeply disturbing,” Sen. Ted Cruz (R-Texas) told Morrison.
“Across this country, Americans are horrified at skyrocketing crime rates, at skyrocketing homicide rates, at skyrocketing burglary rates, at skyrocketing carjacking rates,” he said. “All of those are the direct result of the policies you’ve spent your entire lifetime advancing.”
Sen. Josh Hawley (R-Mo.) told Morrison he planned to oppose her nomination, along with any other nominees the Biden administration puts forward who are “soft on crime.”
“I will oppose you and anyone else the administration sends to us who do not understand the necessity of the rule of law,” he said.
None of it made sense until you noticed a pattern in the attacks Republicans were making: First, use a judicial nomination to wage a proxy fight against progressive prosecutors, a cohort of left-leaning Democratic district attorneys who have sought reforms to the bail system, curbed enforcement of lower-level marijuana offenses and increased the use of diversion programs over jail time. Second, falsely cast these Democratic district attorneys’ policies as the reason for spikes in crime, and then tie the judicial nominee to those policies and therefore the violence.
The whole situation — the faux outrage, the claims that Morrison was soft on crime, the claims that Republicans were the ones who were tough on crime — was a ridiculous spectacle, given that Morrison has spent her entire career getting innocent people out of prison.
The GOP attacks perhaps offer a preview of how Republicans on the panel plan to go after Biden’s Supreme Court nominee when she comes before the committee.
In a series of gotcha-type questions, Cruz pressed Morrison on whether she thinks Philadelphia is safer now than it was before its Democratic district attorney Larry Krasner was elected in 2017. Morrison was an adviser to Krasner’s transition team.
“I do not consider myself an expert on crime statistics,” she began.
“You have no view,” Cruz interrupted.
“I can certainly talk about the cases that I’ve worked on in Philadelphia,” she said.
“So you advised his transition team,” Cruz said, interrupting again. “Let me ask you, when you were advising him on his— and by the way, is the murder rate today in Philadelphia higher or lower than when Mr. Krasner was elected?”
“Senator, I do not know because I have not studied those statistics,” Morrison said.
“So you were part of the transition team but didn’t really care about the results,” Cruz said, cutting her off again while rattling off statistics about crime rates in Philadelphia.
It went on like this for several minutes, until Cruz ran out of time.
“Why do you keep advising radical district attorneys who let violent criminals go and result in homicide rates skyrocketing?” he demanded. “Do you care about the innocent people being killed because of the policies you’re implementing?”
Morrison explained that her work with district attorneys like Krasner has been specifically focused on conviction integrity, or the review of old cases, not on formulating new policies relating to prosecutions. She said there was a link between the two, though.
“It is because when the wrong person is convicted of murder, the person who has actually committed the crime isn’t brought to justice, that I think the work connects and—” Morrison began until Cruz interrupted her again.
“Sadly, your nomination is part of a pattern from this administration and Democrats in the Senate, if they follow their pattern, will vote to [confirm] yet another judge who will let more violent criminals go,” he concluded.
Hawley tried to tie Morrison to a decision by St. Louis Circuit Attorney Kim Gardner to release people who had been arrested during violent protests in the city in 2020 over George Floyd’s murder. Morrison previously wrote a 2019 article praising Gardner’s work on a murder case in which she found evidence that the person who had been put into prison, Lamar Johnson, was innocent, and went to court to try to overturn the conviction.
“Let’s talk a little bit about her record that you saw fit to praise,” Hawley said, painting a dramatic picture of crimes in the city.
“In the midst of rioting that convulsed the city of St. Louis, police officers were shot at … rioters threw rocks and gasoline and frozen water bottles … firefighters were assaulted … innocent civilians were assaulted,” he said. “[Gardner] said the police were the ones at fault…. Is that the kind of approach that you stand by and think is appropriate for prosecutors to take?”
Morrison said her op-ed that referenced Gardner was specifically about the wrongly convicted man, Johnson — and that the piece had a “heartening” effect among Republican lawmakers in his state.
“The Missouri Legislature, I believe a Republican in both chambers who sponsored the bill, changed the law so that Ms. Gardner could successfully file a motion for a new trial on behalf of the individual referenced, and we were joined by the [libertarian] Cato Institute and others in supporting that bill,” she said.
“In the particular case I was writing about,” she added, “it appeared to reflect a broader consensus about how to handle wrongful convictions.”
Hawley continued on as if Morrison hadn’t just pointed out that Republicans in his own state had supported her efforts on that case.
“I’d say they’re pro-crime. They’re pro-criminal practices,” he said of Missouri prosecutors. “You praised these prosecutors as taking a new approach…. For that reason alone, I cannot support your nomination and I will not support the nominations of judges or any other individuals sent to us by this administration who are soft on crime and soft on criminals.”
Sen. Mike Lee (R-Utah) took issue with a 2019 op-ed that Morrison wrote in The New York Times about prosecutorial misconduct. Lee claimed the piece wasn’t clear enough that prosecutorial misconduct only happens in a small percentage of cases nationwide.
Morrison said the op-ed was very clear that it was a small percentage of cases, and that even so, responding to those cases builds trust in the criminal justice system. In what felt like a subtle burn after Cruz’s attacks on her, Morrison noted that Republicans in his state agree.
“In Sen. Cruz’s home state of Texas, there was a law passed in the name of one of my former clients to try to make it easier for the wrongly accused to get access to exculpatory evidence because of proven misconduct in that case,” she said. “That was unanimously passed by a primarily Republican legislature.”
Sen. Tom Cotton (R-Ark.) tried to shame Morrison for taking on one of her clients, Ledell Lee. He was put to death in Arkansas in 2017 for the 1993 murder of a 26-year-old woman, Debra Reese, and previously had been convicted on two rape charges. But four years after he was executed, a different man’s DNA was found on the murder weapon, which was not previously tested. Morrison has taken on Lee’s sister as her client.
“Even after Lee was executed, you continue to try to cast doubt on his guilt with new DNA tests, which proved inconclusive,” Cotton said. “Do you believe that Ladell Lee committed the rapes and murders he was accused and convicted of committing?”
Morrison said Lee’s DNA evidence had never been litigated in the courts, namely because none of his attorneys ever asked the court to allow post-conviction DNA testing, even though Arkansas law provides for it.
“In fact, one of Mr. Lee’s attorneys later admitted that he suffered from a serious drug and alcohol problem and did not provide Mr. Lee with the representation that he was constitutionally entitled to,” said Morrison. “Some of the results were inconclusive, but notably, there was male DNA on the murder weapon that did not come from Mr. Lee.”
Cotton appeared stunned that Morrison was still examining the case, even after Lee’s death and after so many years of court cases. He also didn’t appear to understand the significance and reliability of DNA testing.
“He was convicted on the basis of eyewitness testimony and the possession of Ms. Reese’s stolen property,” said the Arkansas Republican.
“Eyewitness identification, which you referenced, is actually the single leading proven cause of wrongful convictions,” replied Morrison.
She said she couldn’t say much more about the case since she is still representing Lee’s sister, but noted that there is “a significant amount of compelling evidence” in favor of Lee’s innocence.
“Compelling evidence that courts somehow overlooked for 22 years until he was executed?” interrupted Cotton, exasperated.
“Senator, I have represented many individuals who were exonerated by DNA who lost dozens of appeals in courts because DNA was not available,” Morrison replied.
“Are you proud that you encouraged such defiance of convicted murderers?”
At this point, Cotton just tried to make Morrison feel guilty for taking on the case at all.
“As he walked to the execution chamber, on the night of his execution, he looked at a warden and smirked, and said, ‘This ain’t happening. You all are taking me back,’” said Cotton. “Are you proud that you encouraged such defiance of convicted murderers?”
“Senator, I don’t believe that anything in my career has ever encouraged defiance or disrespect for the process,” Morrison said. “I know that Mr. Lee maintained his actual innocence until his execution.”
“Would you like to say anything today to Debra Reese’s family?” Cotton said.
“There is no question that Ms. Reese suffered a horrible death that no one in this world should suffer,” Morrison said. “I only hope the right person was convicted and executed because the contrary is unimaginable.”
By the end of the hearing, Sen. Sheldon Whitehouse (D-R.I.), who had been sitting through everyone’s lines of questioning, summed up the problem with Republicans’ accusations in a single question.
“Does tough on crime include convicting the innocent?” he asked Morrison.
“No, senator,” she replied. “It does not.”