Texas has had more than its share of tragic wrongful convictions. Of the more than 40 people exonerated by DNA in Texas, one of the most heartbreaking cases is that of Timothy Cole. Cole was wrongly convicted in 1986 for a Lubbock rape. DNA testing conclusively exonerated him last year and identified the true perpetrator. But the exoneration came too late. In 1999, Cole died in prison of a severe asthma attack, an innocent man.
So far, Texas has been slow to respond to the long list of mistakes that exist in each of these wrongful convictions. These mistakes have forced innocent people to spend over 500 years in prison for crimes they did not commit. But that may be about to change. Last May, the Texas Legislature approved a bill creating the Timothy Cole Advisory Panel on Wrongful Convictions, and directed the Texas Task Force on Indigent Defense to work with the panel on a report on needed reforms to prevent wrongful convictions. The Cole Panel's inaugural meeting is slated for today.
Fortunately, a great deal of work has already been done by similar state commissions across the country. It is remarkable, if not surprising, that most such inquiries have identified the very same sources of error, and have developed a remarkable consensus on what reforms are needed to reduce the risk of convicting the innocent.
The problems are well known. Eyewitness error is, by far, the leading cause of wrongful convictions. Invalid forensic testimony, false confessions elicited in undocumented interrogations, and witnesses with incentives to lie are also common causes for wrongful convictions. Finally, bad lawyering in the form of prosecutorial misconduct and ineffective assistance of defense counsel has too often undermined justice.
Just as no one disputes the factors that lead to error, there is also a remarkable consensus among those that have studied wrongful convictions on what is needed to fix the system. New, more accurate lineup procedures ensure a more objective assessment of witness memory and better documentation, leading to more reliable identification testimony. Electronically recording interrogations of suspects provides a reviewable record for judges and juries that allows for a more accurate assessment of voluntariness and reliability thereby eliminating disputes about what took place in the interrogation room. Subjecting in-custody informant testimony to greater scrutiny and transparency would help keep unreliable testimony out of court. Creating more accountability mechanisms for prosecutors who step over the line of fairness would fix a system that too often turns a blind eye on misconduct. Finally, continuing to move Texas toward public defender systems of indigent defense that include robust performance standards, reasonable caseloads, and professional development and support make sure that courtroom contests are fair and more accurate.
Given the track record of wrongful convictions in Texas, the Cole Panel is a good idea in addressing wrongful convictions, but it is only the beginning. The members of this study group must help all criminal justice stakeholder groups become aware of the issues and build support for common sense change.
No bureaucracy accepts change easily, and our criminal justice institutions are no exception. But they can do much better. All the parties, police, prosecutors, judges and defense lawyers, need to recognize that reforms will enhance the accuracy of our system, and will generate better, stronger evidence against the guilty, while protecting the innocent.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.