Episode 248: CIUs/ Intro to Lamar Johnson

 

Jessa: I’m Jessa.

 

Nick: I’m Nick.
 

Jessa: And we’re back. Happy new year.

 

Nick: Happy new year. This is the first episode of 2020.

 

Jessa: Getting Off 2020.

 

Nick: Getting Off 2020.

 

Jessa: Hindsight is perfect.

 

Nick: Yeah. I can see clearly now.

 

Jessa: The rain is gone. All obstacles in my way.

 

Nick: Well that. No, that’s funny to bring up because that’s kind of what we’re continuing to talk about, is obstacles.

 

Jessa: So our, like sort of end of year sign off briefly touched on the concept of Conviction Integrity Units. Right? Which is, like, why is it that we have so many exonerations and there’s so little accountability. And today, I think we’re gonna talk more about what a Conviction Integrity Unit is, where they are in this country, what they do, and we’re gonna introduce our next deep dive which is a case that ultimately was pursued by a Conviction Integrity Unit.

 

Nick: Is being. Still.

 

Jessa: Yeah. To…. which, like, okay.

 

Nick: We’ll get to it.

 

Jessa: So let’s start with, what are these things?

 

Nick: Okay. Well, you know, last time, we were talking about the system and about, you know, what impedes change and why it was so remarkable that Kat Jones emailed us about, that a prosecutor admitted, that somebody, that he believed, that he determined that someone was in fact actually innocent. And so, one thing that is happening in the world these days, of relatively recent, is this, the creation of this thing called Conviction Integrity Units or Conviction Review Units. CIUs or CRUs. Right. So, well. Let’s start. What is that, Jessa?

 

Jessa: Well, so, what that is is sort of an internal check on the system that is created by a district attorney’s office somewhere in the country, and we’re gonna talk about how many of them there are. But some city’s or town’s DA’s office, jurisdictions have decided that it would be good to have some, sorta, internal check and balance to make sure that they’re things correctly. An action that, by the way, I applaud generally.

 

Nick: Oh, I mean. Of course. Right. I mean, I think we all should applaud it. Defense attorneys certainly would applaud it. And so, what is this? As you say, it’s an internal mechanism prosecutors side, government side, state side that exists to examine in some way, shape, or form, look into claims of, I mean certainly sometimes innocence, but reviewing wrongful convictions, that’s probably a good way to put it. And so, one thing we touched on a little bit last time is, I think only a little bit, we should talk about it more, is if reforms are going to happen or if change is going to happen, what’s the best way for them to happen? Or how realistically might they happen? We talk, not infrequently, about the fact that prosecutors have more power than anybody, any other entity in the criminal justice system, and so they are certainly going to have to be a part of any change, you know, reforms and changes that might happen. So from that perspective, these are a really terrific thing. Not that many of them exist. There are somewhere in the neighbourhood of 45 or 50 or something like that, around the country. A lot of them are in bigger jurisdictions, which is probably a good thing. They don’t come into existence unless the elected head prosecutor wants them to because they are an entity within a prosecutor’s office.

 

Jessa: Right.

 

Nick: But how they operate can vary significantly, of course, from place to place.

 

Jessa: Right. And so far as we can tell, there’s some dispute about who the first county, nationwide, was to introduce such a concept. I think it appears to have been Santa Clara, California, in the early 2000’s and there was sort of a rash of wrongful convictions in sexual assault cases that led them to form this unit. It rather quickly disbanded and lay dormant for a number of years and then was revived in, like, 2008 or 2010 by a newly elected DA that was, like, “Hey. This was a pretty good idea. Let’s bring it back.” And the idea was, we should be looking at our own processes internally, independent of what some defendant’s lawyer might raise as a complaint. Because there’s value in making sure we’re doing things correctly.

 

Nick: Right. And the prosecutors’ ethical responsibilities are not to just be conviction machines but to actually do justice. And so, I think there’s, you know, if you’re looking at it straight up, right, if you’re giving an honest assessment and an honest analysis of what prosecutors’ responsibilities are, not, you know, colored by, I don't know, politics or whatever else might influence people. This would be a great thing because it would give or can give confidence to the integrity or the validity, the credibility of the system.

 

Jessa: And many of the jurisdictions that have started these units hire defense counsel, like historically, defense-oriented people, so, like, me, for example. Somebody like me would be offered a job to review convictions because, specifically, they’re not entrenched in prosecutorial theory. Now, that’s not a requirement for these units nationwide, but many places seem to have adopted that idea that there’s some value in finding somebody who’s independent from career prosecutorial conduct.

 

Nick: Right. And there’s, there is sources of purported best practices and model policies and model practices for these kinds of entities. Innocence Projects have promulgated sort of, you know, their view of best practices. There’s a relatively new organization called “Fair And Just Prosecution” that is a prosecutor, it’s a prosecutor’s organization. It’s an organization consisting of prosecutors who are advocating for this kind of thing. You know, best practices in the world of prosecution, progressive notions, fairness, and among the things they advocate, is, you know, the existence of these CRUs or CIUs and they promulgate. They have notions of what they think the best practices are and all the ones that I’ve seen suggest that it is important for the unit within the prosecutor’s office to be independent of everybody else and to have some, you know, strong, legitimate experienced attorney in charge of that unit. And that that person report directly to the elected and not to someone else in the office. And so, yeah, as we’ve read about sometimes, those people are defense-side folks. For example, in Wayne County in Michigan.

 

Jessa: And, you know, I will say this. It is pretty human and understandable to me that when you work beside someone everyday for years, you form an opinion about their level of trustworthiness. I certainly have an opinion that you’re trustworthy. We’ve worked side by side for several years now. I would be inclined in a circumstance where there is ambiguous evidence to give you the benefit of the doubt. That’s based on my personal experience. I think that’s really natural. I think that’s also why there’s this goal of bringing in independent people because when you do work with somebody everyday, assuming that you think they’re competent. You can’t help but sort of trust what their conclusions are.

 

Nick: Right. But look. That occurs, that exists all over.

 

Jessa: Not just in law.

 

Nick: But all throughout the law. That’s why we don’t let people who’ve been the victims of crimes prosecute cases or decide what sentences are. We want to have people who are not biased by personal relationships or personal feelings.

 

Jessa: Right.

 

Nick: And. Yeah. And that issue arose in part in the case that we’re gonna do a deep dive on.

 

Jessa: Right. Now what’s sorta interesting is, out of these jurisdictions that have created CIUs, there’s a pretty broad spectrum of how many cases are actually overturned or action is taken. And there are a lot of big cities that have these. The University of Michigan has something called the “National Registry of Exonerations” that they link to. That charts that there have been 2535 exonerations as a result of such things and those exonerations have resulted in 22,540 years of innocent people’s lives lost to wrongful incarceration. And, like, sometimes I worry that when we get numbers that big, they sort of blur together in a way that is abstracted, but like, everybody should think about how old they are, and think about the fact that people are getting sentences that are literally longer than I’ve been alive. Like, I’ve been able to develop from an infant to a lawyer in the amount of time that somebody’s been sitting in the same cell everyday. Like, it’s easy to get lost in the stats of that, but it’s, if you really focus on the time, that’s pretty overwhelming.

 

Nick: Yeah.

 

Jessa: And a lot of these agencies, you know, like, L.A. only has, it was founded in 2015. There are only three exonerations. Lake County, Illinois, which is a adjacent-ish to Cook, only has three. You know, like, Suffolk County in Boston has one and that is true from 2012 to present. Then there are, like, the outliers. Right? There are these counties and like, Cook County and Harris County are two really good examples, in Chicago and Texas respectively, where Cook County has had 94 exonerations and Harris County has had 141. Are these people just better at finding the innocent? What’s going on there?

 

Nick: No. In those two counties, the explanation appears to be largely that there were specific, really significant errors that happened. For example, in Cook County, a particular law enforcement officer was responsible for all sorts of, you know, bogus convictions, false convictions based on egregious misconduct that led to dozens of cases being tossed out. And in Harris County in Houston, there was a scandal, a huge problem with one of the crime labs that led to lots of, dozens of cases being tossed out after the fact. So, you know, one question is, what issues cause false convictions?

 

Jessa: Right.

 

Nick: Erroneous convictions. Wrongful convictions. And that’s an example. Sometimes there are, you know, bad actors or massive systemic errors that cause a rash of wrongful convictions like, in a discrete period of time. But, you know, I think we’re also well aware of the factors, other factors that can contribute to wrongful convictions more generally, and we’ve talked a lot about that both in these episodes and previously.

 

Jessa: So. Alright. Setting aside the systemic research that exists, like, “Oh hey, there’s a bad actor in the crime lab. Oh hey, there’s a police officer that’s corrupted. We should look at all of this actor’s cases.” What happens when an individual applies for help with a Conviction Integrity Unit? So it is a defendant, usually. Almost always. And they’ve requested a review and different jurisdictions have different rules, but one thing that we pulled as we were able to find the Harris County, Texas, standards, and they have some pretty specific rules. They won’t review capital murder cases because those are handled by a different agency in the post convictions writs division.

 

Nick: Right. And as we referred last time, talked about last time, capital cases, I think, always basically everywhere in, what is it, 29 states or something like that that currently have the death penalty, there is generally an automatic intensive appealate review process for those types of cases.

 

Jessa: And what they do say is, “Look. We’re gonna look at the nature of the claim that details provided by the claimant supporting his claim of actual innocence or wrongful conviction, analysis of the procedural history of the case, and availability of law enforcement reports, evidence and results of forensic analysis to review.” And while the conviction the Conviction Integrity Unit reviews these things, they don’t represent the defendant. They’re just sort of this third, a third party is a dicey way to phrase that but they’re this allegedly review body.

 

Nick: Yeah, and there’s a couple things going on there from my perspective. One is, again, going back to this notion of, do we want that? Do we trust that? Right? You referred, you know, to the fox in the hen house here. And I think the results are not uniform. I think in some places, you have these units doing good work. In some places, not so much. With these best practices that have been promulgated in various places, and then after the fact, an academic study about how these, what the performance have been like, suggests that what you get is consistent with what you put into. So if they have a full time dedicated staff. Not part time, you know, people. If it’s well staffed. Basically, if it’s made a priority, they actually do good work.

 

Jessa: Yeah.

 

Nick: So there’s that, but here’s the, I’m, a person could be naturally suspicious or a measure of suspicions and saying “Oh, why would we trust these folks to do this?” Well. What else do you want? Because here’s the alternative: the defense just brings a motion on their own.

 

Jessa: Right.

 

Nick: Right? Just, like, with no additional support. With these entities, there’s the opportunity to get the DA, the prosecutors on board. And so, what’s the worst that can happen? You bring a claim to their attention. You bring issues to their attention and they say “No, we don’t agree with you.” Then you still go ahead and file the, under whatever sort of legal recourse you may have. And the evidence shows that at least in some of these offices, this is taken quite seriously. And there are good outcomes. Now, another aspect of this that is not uniform because, really, none of this is uniform.

 

Jessa: Right.

 

Nick: Right? As you said, this is up to any individual elected prosecutor to do or not do and not all that many people have done it. Okay. But then, even state to state, the options that may exist. Like, let’s say you have a really strong case and let’s say you take it to your county, your jurisdiction has a CRU or a CIU and you bring it to them, and they review it, and they agree with you. Well, your options may vary state to state. Not only in terms of criminal procedure, appellate procedure, but also statutorily. Some states have, where these things exist, have created, passed statutes that create mechanisms for them to actually do something. So that’s providing explicit legal authority to do something in the event that they find a legitimate case. And in other states, those statutes don’t exist which may limit the legal options that the prosecutors in these units have.

 

Jessa: Well, and, just like in Harris County, just because they conclude that “Yeah, this conviction is wrongful”, it’s not as though the state represents you and moves to vacate, necessarily.

 

Nick: No, not necessarily.

 

Jessa: It just means that you, as the defendant, get to be like, “Hey, so these people agree I’m innocent. Thoughts?”

 

Nick: Right. Now this goes, there’s, you know, an interesting dynamic here. We’ve got prosecutors, elected prosecutors and none of this is federal stuff. This is just states that we’re talking about here. These are elected officials choosing to create these units within their offices. But then you’ve got legislators who have some measure of a role to play, in as much as they can pass statutes to assist this or not. This process. This notion. And then you’ve got a, you know, the judicial branch of the government playing a role here, as well, interpreting statutes and case law and presumably having views of their own about things these units are doing, and this is reared its head in the case that we’re going to dive into not too long in the future.

 

Jessa: Right. So before we do that, let’s talk about our sponsor.

 

Nick: Let’s talk about our sponsor. Our sponsor is our wonderful friends at HelloFresh.

 

Jessa: Always.

 

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Jessa: So many, really.

 

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Jessa: So go to HelloFresh.com/OFF10, use the code “OFF10” to take advantage of this lovely offer. Okay. We were talking about, sort of how all of this works, with these Conviction Integrity Units, and there are some critiques that have been raised by, like, sort of, outsiders. One of which is, there’s a lack of transparency with what these units are doing, nationwide, and there’s this really great article in the Washington Post that talks about that. That, you know, people are trying to figure out if this is useful or not and there just aren’t a ton of places that people can get data to see what these CIU units are doing. And that’s kind of a problem, insofar as, again, it’s about process in sunlight. So, like, if you’re unwilling to release your results, you have to ask why that is. 

 

Nick: Right. And this stems from, I think it’s clear, the lack of any sort of uniformity in the existence or administration of these entities. Right? They vary, they don’t even have to exist.

 

Jessa: Right.

 

Nick: So if a prosecutor doesn’t have to create one, if they choose to create one, clearly they can choose to administer it or operate it in whatever fashion they see fit, absent some kind of authority directing how they do so, and that stuff just doesn’t exist. Outside of suggested best practices.

 

Jessa: And I guess my point, like, yes. You are absolutely right. That’s absolutely true. But, and here’s my but: why bother doing something if you’re not gonna be honest about what the thing is? Like, yeah, you’re right. Maybe we should all just be super grateful that we get this internal review process in any capacity and we should just be happy about it. But I would suggest that it’s actually fine, and in fact, encouraged that citizens would want to know, “Hey, these people that are doing things in the government. Is this worthwhile and what are they producing?” It bothers me that we don’t hold our government more accountable to keep data to demonstrate that tax dollars have some value.

 

Nick: Right. But there’s a really significant variation in, sort of, the results or the outputs of these units, right? We talked, you know, earlier about the University of Michigan website that has data on these units. And you referenced Chicago and Houston having huge numbers, sort of outlier numbers, and there’s a reason for that. And then, but there are also a lot of counties that have these units that have produced no exonerations. Like, none at all.

 

Jessa: And, like, look. Some quantum of people that are convicted at trial are guilty. Like, yeah. I don’t think anybody’s taking the position that everybody that’s been convicted at trial has been wrongfully convicted. I would hope that they’re rare.

 

Nick: No, of course not.

 

Jessa: You know, that’s the goal of this system, is that these things are rare.

 

Nick: Of course. Most outcomes, I hope this is apparently true. I sure hope it is also actually true, and I believe it is. That most outcomes are correct.

 

Jessa: Yeah.

 

Nick: And also, that’s, by the way, not a very high standard. Most?

 

Jessa: I don’t even know what that means.

 

Nick: Is that more than 50%? The data that we referenced earlier suggested that perhaps 4% of convictions are actually wrongful.

 

Jessa: Right. So I would suggest that the fact they turn away a lot of applicants is really, kind of, par for the course. There are also some things that will sort of trigger a better review, and I’m inserting my own judgement there. If there’s stuff that can be tested for DNA, that’s gonna be more reliable. If there’s other objective pieces of forensic evidence that can be reviewed, that’s gonna be more reliable. If there are ways to verify what witnesses that have come forward or recanted are saying, that’s preferable to not verifying that. And in fact, Harris County holds the position that “We’re not gonna take cases that are just about credibility determinations”, which, you and I have both been at counsel table for any number of cases where the conviction is premised on the word of one complainant and no corroborating evidence. Those are cases that often result in very lengthy prison sentences. I’m thinking about child sexual assault in particular, but there’s really not a mechanism for review when it’s just about whether or not a jury believes a witness. Which, like, there’s some logic to that, right? Because the credibility witnesses is the province of the jury unless there’s objective outside data that contradicts the witness testimony.

 

Nick: Right. I mean, look. This goes back..

 

Jessa: There have to be limits, like I get it.

 

Nick: There really seriously have to be limits because, again, this system doesn’t want, and I don’t just mean the system. Really, everyone shouldn’t want this, all this to go on and on forever. Like, finality is a legitimate concern. We just shouldn’t prioritize finality over truth.

 

Jessa: Right.

 

Nick: But. As you said, a decision of this sort has to be based on something, and this system is not going to be interested in someone other than the jury basing a decision about guilt or not or innocence.

 

Jessa: It’s not just a casual review of the trial record.

 

Nick: Right. Because as you said, nobody else gets to make that decision about credibility other than the jury and the jury alone. And so, there’s gotta be more than that. But again, there is no uniformity in what standards any DA’s office or any prosecutor’s office may use in deciding what cases they’ll even accept to review, what standards they will apply in reaching a decision. Right? It’s really all up to each individual prosecutor.

 

Jessa: And, like, look. There are some pretty rockstar prosecutors. We talk about Larry Krasner a fair amount on this show. Since he took office, there have been 10 exonerations out of Philadelphia based on police misconduct.

 

Nick: Right. Well, one’s that they’ve signed off.

 

Jessa: They’ve signed off on. And that’s meaningful, right?

 

Nick: Of course. He’s getting pushback. 

 

Jessa: People are pissed about that.

 

Nick: Yeah. I mean, Larry Krasner’s getting a lot of pushback from all over the place in Philadelphia, right? He’s at odds with the feds, with local enforcement, with all sorts of people who don’t like what he’s doing. And the courts are pushing back against some of his efforts to, for example, resentence a death row prisoner to, converting the sentence to life and the, a federal judge in that instance blocked that. So there is, you know, part of this story of this movement, if we can call it that, is the fact that prosecutors who do have more authority than anybody else are seeing their authority checked in this particular instance by other entities within the criminal justice system.

 

Jessa: Well, and that sort of leads up to the introduction to the case that we’re gonna talk about. Right? Which is out of St. Louis, Missouri, and it’s an early one. It’s a case from the 1990’s, but one might think that if such a unit exists within a DA’s office and that unit concludes that there is a miscarriage of justice, that that’s sort of the end of the story. Right?

 

Nick: Well, I mean, one might think that. One might think that if a defendant and his counsel succeed in convincing the agency because it’s really always going to be the prosecutorial agency that prosecuted the defendant in the first place. Succeeding and convincing that very same entity, albeit probably under different leadership, but succeeding and convincing the prosecutors, the government, the people who put the defendant in prison in the first place, that the conviction is unjust, that they are in fact innocent. I think a layperson and perhaps lots of lawyers would envision that would be enough because what goes on in courtrooms? Resolutions of disputes. If the two parties to the case don’t disagree, what’s the problem?

 

Jessa: What’s the dispute? So, you might think that, “Okay. So there’s no guarantee that we get this sort of review. This is sort of at the mercy of the prosecutors. But surely, if we have a prosecutor who concludes that I am innocent, surely something will be done about this. And it won’t be met with resistance. And I think what we’re gonna talk about is, last time, I was sort of complaining about people’s unwillingness to take responsibility for their mistakes. As we go in to talk about Lamar Johnson, which is our next deep dive, I want to talk about what happens when everybody admits their mistakes. And how the result doesn’t look like you might think it would.

 

Nick: Not always. And this one is ongoing and, where do we want to go with this today? We’re going to do a full deep dive into this case, as we move forward. But this is what happens. This is what has happened in this instance and it’s a really interesting example of the inertia of the system and how difficult it is..

 

Jessa: To make change.

 

Nick: Especially in this particular context. The criminal justice system, I think we can accurately say, is resistant to change, and yet, here we have a prosecutor’s office, as we’ll talk about, making a determination that itself, that prior members of that office engaged in misconduct.

 

Jessa: Right.

 

Nick: Such that the conviction is flawed, is unreliable, that if a full airing of the evidence had been heard at the time, that there would have been an acquittal. The prosecutor wanted that. The defense wanted that. Legal academics have signed off on this. Other prosecutors have written amicus briefs endorsing this. But it hasn’t happened yet.

 

Jessa: And next time, we’ll talk about why. That’s what I’ve got by way of introduction to see CIUs. We’ll come back to the case itself next time. In the meantime, I am Jessa.

 

Nick: And I am Nick.

 

Jessa: And this was the Getting Off podcast.

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