Jeff Deskovic.

Thursday, March 26, 2009

Jeff Deskovic.

What A Second Look Program
Should Look Like

As I have written previously, and will doubtless reiterate in the future, District Attorneys and prosecutors wield a great deal of power. Their actual mandate is to seek justice. That involves not simply winning convictions, but also helping to free the wrongfully convicted as well as preventing further wrongful convictions.

There have been, of course, many shameful instances in which prosecutors have prevented DNA tests and/or fought against claims of innocence despite compelling evidence, in an all-out effort to uphold all convictions, wrongful or otherwise, no matter what. Similarly, have been numerous instances of praiseworthy behavior, as when prosecutors have agreed to a reversal of charges based upon evidence of innocence that has been brought forward, or have agreed to DNA testing.

However, as positive as those instances are, having a Second Look Program within the district attorney’s office, one which will pro-actively go through old cases searching for wrongful convictions, is indefinitely better. ere are many reasons why this is true. One of them is the fact that
often poor defendants who cannot afford private attorneys do not get adequate investigation.

Additionally, once a defendant’s appeal has been turned down by the Court Of Appeals, which routinely does not agree to hear meritorious cases, the State is no longer obligated to provide free representation.

Although the federal courts are able to appoint counsel for the poor, they often do not do so. Hence the need for the reviewing of cases even without prompting from a defense attorney. Some months ago in this newspaper I wrote a two-part series entitled “We Need Second Look Programs In e Prosecutor’s Office”. I will now examine how I believe such a program could and should operate. Before getting into the details, I
think it would be instructive to look at the program that Dallas District Attorney Craig Watkins has pioneered, and which he has named the “Conviction Integrity Unit.”

In order to create the unit, Watkins first had to obtain funding. He went before the Dallas County Commissioners seeking it. Two of the five members opposed Watkins, arguing that the unit would place the District Attorney’s Office in the role of defense counsel, and that the oversight was not necessary.

In a 3-2 vote, Watkins got some funding, but not all that he had asked for. The funding was only enough to enable him to hire two attorneys, one investigator, and one secretary. To make up for the lack of funding, he collaborated with The Texas Innocence Project, and has law student interns, working with paid staff, reviewing cases. They are currently reviewing more than 400 cases in which his predecessor denied prior testing.

There are eight cases awaiting test results. Under Watkins’ watch, five people have thus far been cleared based upon DNA.

I present those cases:

• Charles Chatman was cleared on Jan. 3, 2007 after serving 27 years for Rape. He was convicted when he was 20 years old, and is now 47. e cause
of his wrongful conviction was misidentification having been picked out of a photo array.

After earlier tests proved inconclusive, Chatman recently agreed to Y-STR testing, an advanced form of DNA testing that can determine a profile from a small sample. The risk was that this final test could have consumed the last of the biological evidence in the case. However, it proved to be the right decision as the profile proved that another man committed the rape for which Chatman was serving a 99-year sentence.

• Larry Fuller served 19½ years out of a 50 year sentence for Sexual Assault based on a misidentification. Initially the victim stated that she could not identify her assailant because the room was barely lit and the crime took place about an hour before sunrise. A week after the crime the police, nonetheless, asked her to make an identification.

After viewing one photo array she said that Fuller, “looks like the guy,” but that she could not be sure. After being shown a second array she then said that she was sure it was him. Additionally, a serological test was performed on semen collected from a rape kit. Fuller was serologically included in that he was a non-secretor, and the blood type of the rape kit fluid matched the victim’s own blood type. Therefore, serological testing did not exclude Fuller, but it also did not identify him as the perpetrator.

At trial, however, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime. Mr. Fuller first contacted the Innocence Project in the mid-1990s. A 2003 DNA test was inconclusive, but a 2006 test ruled him out as the assailant, and he was released.

• Greg Wallis served 17 years out of 50 years for Burglary of a Habitation with the Intent To Commit Sexual Assault. The victim gave a description to police but, without any leads, the crime went unsolved.

After four months police circulated a flier about the attack in a local jail. An inmate told the Irving police that Gregory Wallis had a tattoo similar to the description given by the victim. The victim subsequently chose Wallis out of a photo array. Wallis and his wife testified that they were together at the time of the crime, but he was convicted anyway. A 2005 DNA test could not entirely rule out Mr. Wallis as the rapist. A second
test in 2006 proved that Mr. Wallis was not responsible for the attack.

• Andrew Gossett served 7 years out of 50 years in prison in the 1999 Sexual Assault of a Dallas woman. He came under suspicion based on his matching the general description given; followed by an erroneous pointing out of him in a photo array. He had been seeking DNA testing in 2001, but the then-District Attorney prevented him. In 2006, with Watkins in office, tests showed that he was innocent.

• James Giles was convicted of Aggravated Rape. He served 10 years in prison, and 14 years on parole as a registered sex offender. The female victim identified a photo of him. A month after the crime, a Crime Stoppers tip led police to include James Curtis Giles in a lineup, and the victim identified him as one of the three rapists.

Neither a male victim, nor another eyewitness, identified James Curtis Giles in a lineup or at trial. James Curtis Giles, at 29, was a decade older than the description of the perpetrators, and he had two prominent gold teeth which the victim also didn’t mention. His alibi was that he had
eaten dinner with his wife and afterwards went home and went to bed early.

Documents now show that evidence indicating the identity of the actual perpetrators, including a man named James Earl Giles, was available to prosecutors before trial and was withheld from defense attorneys for James Curtis Giles. In 1984, one of the attackers, Stanley Bryant, pled guilty. He said he committed the crime with a man named “James” and a man named “Michael.” The next year, Bryant signed an affidavit that James
Curtis Giles was not the “James” who participated in this crime.

While in prison, James Curtis Giles met a man who lived near the victims and had called Crime Stoppers during the investigation of the crime and told them that one of the perpetrators was named “James Giles.” The informant said he had learned that a different person, James Earl Giles, was the alleged attacker. Since 1991, both the informant and James Curtis Giles have said that the wrong James Giles was convicted of this rape.

James Curtis Giles served 10 years of his sentence before he was paroled in 2001. Some Thoughts Regarding A Second Look Program. Clearly, the approach DA Watkins utilizes works well. The everyday nuts and bolts of it, however, are not known. Also unspecified is how the program operates in non-DNA cases. Lacking those details and therefore having to reinvent the wheel somewhat, I will share some thoughts regarding ways
in which a Second Look Program might actually work.

Firstly, everybody who works in that program would first have to be thoroughly educated as to the many causes of wrongful convictions. It is essential to insure the fact that in reviewing cases, they would know exactly what to look for. The book Actual Innocence, by Jim Dwyer, which
lists the many different causes of wrongful convictions along with at least one example for each, would be required reading. I would require a written test featuring essay questions about each possible cause together with at least one case as an example.

Personnel would need to be familiar with false confessions, misidentifications, junk science, incentivized witnessing, inept defense attorneys, and prosecutorial misconduct of all kinds. It goes without saying, although I will say it here, that anybody who had previously been involved in prosecutorial misconduct, or a deliberate ‘looking the other way’ while it went on, would not be allowed to work in the project.

In terms of funding, the district attorney would need to go to appropriate governing bodies in their jurisdiction, either the county legislature or state legislature, and lobby for money to hire full time staff, as DA Watkins did. Additionally, unnecessary personnel in other departments would be removed and those salaries appropriated for project staff.

Beyond that, further personnel could be obtained through a variety of ways without increasing costs, including partnering with an innocence project and/or law school. The law school option is desireable because it would attract students by offering the experience as an internship, preferably a paid one. As with every other division within a District Attorney’s office, there would of course be a supervisor responsible for overseeing the unit, who should receive, at a minimum, weekly progress reports so as to hold everybody accountable. The supervisors,
themselves, should have to explain what was going on.

Additionally, anybody working in the unit must be free to go to the district attorney, themselves, with any issue about the unit, so as to avoid the kind of blind obedience to authority even when ordered to do something unethical as has often gone on in district attorneys’ offices.