Liveblogging the Marketplace of Ideas: Preventing Wrongful Convictions and Exonerating the Innocent
Welcome to the latest installment of DMI's Marketplace of Ideas! Today's event is on preventing wrongful convictions and exonerating the innocent, featuring Dallas District Attorney Craig Watkins. Watkins, who was elected in 2006, is the first African-American DA in Texas and has worked to open the files of Dallas-area convicts and order DNA testing for those that may have been wrongfully convicted.
I'm looking forward to the panel discussion today, which will focus on reforms here in New York that could prevent innocent people from going to jail. Moderated by DMI's Andrea Batista Schlesinger, the panel will feature Westchester County DA Janet DiFiore, Innocence Project co-founder Barry Scheck, and New York State Senator Eric Schneiderman. This is a really important issue for New York right now -- according to the Innocence Project, 23 wrongful convictions have been overturned based on DNA evidence here in New York -- so I'm looking forward to hearing some of the policy solutions to this issue as well as the response to DA Watkins' criminal justice reforms.
Despite the fact that it's only 8 am on a Monday, things are looking good here at the Harvard Club. The room is filling up, and I'm overhearing lots of good conversation from people who clearly have a lot of experience in this field. I'm curious to hear some of the policy solutions that will be discussed today. I was talking to my mother on the phone yesterday, and told her that'd I'd be liveblogging this event. I said it was about not sending innocent people to jail and she replied, "What? Is that even debatable?" I'm looking forward to hearing how the panel would answer that question, and the policies that are in the works to solve the problem.
Time to start! Andrea steps up to the podium to give the introductions. "Our Marketplace of Ideas series looks at policies with a proven track record," she says. She talks a bit about Craig Watkins. "He stepped into a job with various substantial challenges," she says, and Watkins is meeting these strategies "head on." She says that he aims to be not only "tough on crime" but "smart on crime." Craig and the Innocence Project will examine hundreds of convictions, and since Craig took office two people have already been exonerated.
Andrea mentions that New York is just behind Texas and Illinois for the most convictions reversed, so this issue is particularly relevant in our state.
"I'm honored to introduce you to District Attorney Craig Watkins."
Craig Watkins steps up to the podium. "I'm from Texas, and this is kind of a culture shock for us to be 50 degrees in October," he says, introducing some of his staff that traveled to New York with him.
Craig gets right into his experiences as a DA. "When I took this office as District Attorney I realized the power of it." He says he thinks that previous DAs didn't realize the ability that they had to effect change. 'When you're a DA you have a lot of power, and it's not just from the aspect of the criminal justice system."
He said we've had the "tough on crime" vs. "soft on crime" conversation for 30 years, and that this simplistic model just doesn't cut it. Something needs to change.
Craig mentions the "drug epidemic" that led to the passage of laws and policies that locked people up for "a long time for minor offenses for drug cases," which he said led to recidivism and repeat offenders. He mentions that we built a lot of prisons in the '90s. "Just building prisons is not going to reduce crime and not make the citizens any safer."
"If you punish someone without rehabilitation then you really just make the situation worse," he says. You can't just punish -- you have to educate people and give them a marketable skill so that people can survive in a post-jail life.
"The innocence aspect is sexy, people like to hear about that," he says. But it's not only about innocence, but about preventing crimes before they occur. Society needs to change and not just correct it's past mistakes.
Craig talks about his work in Dallas and how he's looked at old cases. "The role of a district attorney is to seek justice," he says. A DA shouldn't just convict, but see that justice is being served. "It's easy to get on television and tell someone you're going to be tough."
He says it's harder to explain to your constituents that you're going to be smart, and not "tough" in the conventional sense. Being smart means looking at underlying issues that lead people to convict crimes. Thirty second soundbite TV ads aren't enough to explain to voters the complexity of the issue. "Not only should we look to punishing individuals, but we should also look to rehabilitate those individuals."
He says that ex-convicts are "going to be our neighbors," and it's in the best interest for all of us as a society to rehabilitate and "fix" these ex-criminals.
He speaks of how he got elected in 2006, and why the criminal justice system was failing. I like that he refers to his election as "we" -- he seems really close to the team of individuals who he works with in Texas.
Craig says that even staunch conservatives in Texas are starting to agree with his policies. He speaks of the "economic side of the criminal justice system." "We spend roughly $34 a day to imprison an inmate, and only $8 a day to educate our children."
Wow, that puts it in perspective. "Maybe we should put our money on the front end instead of the back end," he says. Waiting to prosecute an individual is "reactive."
Being a DA is larger than just going to a courtroom and arguing that someone should be punished. Craig sees himself as an advocate for citizens, a role that goes "beyond the four walls of the courtroom."
He says that 86% of individuals that go to prison don't graduate from high school. "If we address that then we don't have to see those individuals in the courthouse and we don't have to prosecute those individuals."
"Change happens in the most unlikely of places," he says. "Here I came and they didn't really see me coming." The audience chuckles.
He says that the criminal justice movement is starting in Dallas -- "we've sent more innocent individuals to prison than any audience in this country."
"We have the largest prison population in the world in Texas," he says. And despite that, Texas still has a high crime rate. "Because it's the worse place we can affect the most change."
We need to use all the tools that we have to progress criminal justice, and Craig says we need a more humanistic approach to crime and punishment. He says that the vast majority of the people that we're working with "can be saved" through a civilized criminal justice system.
He noted that the man who ran against him for DA ran on the negatives on the system, basically the number of people he sent to death row. Craig's campaign was "smart on crime," not just tough.
"Thank you for having me."
Big audience applause.
Time for the panel. The four panelists move towards the front of the room, shaking hands, pouring water, looking through papers.
Andrea starts it off, introducing New York State Senator Eric Schneiderman. "He's worked as an anti-crime advocate for his entire career," she says. She says that he's been a target of conservatives, and jokes that "we have bodyguards to escort him in and out." The audience laughs.
Andrea asks Eric the first question, mentioning that New York is seriously behind in criminal justice policies. "What's happening in NY and why are we so far behind?" she asks.
Eric responds that "Nothing is happening in the State Senate and State Assembly." He mentions a conference committee that he was on that dealt with a lot of issues that Watkins just discussed, and the lack of results that came out of that committee. He says that the committee was close to closing on the bill. Eric agrees with Craig, saying that the thinking on criminal justice is driven by "soundbites and poll numbers."
"We are still dealing with this tough on crime mentality," he says. We need to increase expectation of elected officials so that the reforms will actually get passed. There needs to be more political pressure on conservatives in the legislature to "see things in a bigger context."
"So that's a long way of saying nothing is happening, Andrea."
District Attorney Janet DiFiore's turn. Andrea says that Watkin's proposals were called "hug a thug" by his opponents and the attitudes exist that Watkins was "soft on crime." She asks if those pressures exist for DAs in New York, and how they're an obstacle.
Janet mentions the role of the public prosecutor in the community. "Most enlightened people realize that our role has expanded." She also mentions the word "reactive," saying that prosecutors need to find proactive, more holistic ways to decrease crime in our community.
"I talk to people and I tell people that the prosecutor is the most important local office in our government." People are beginning to realize that the work that we do impacts on a day to day basis whether or not people in our community are receiving justice in the courts.
Andrea asks if that message will resonate when reelection time comes around. Janet says that she hopes so.
On to Barry Scheck, co-director of the Innocence Project. "Obviously each conviction [that's overturned] makes a splash in the press," says Andrea. How pervasive do you think wrongful convictions are in our system?
Barry says we don't know the exact number. "If we knew that we'd tell you!" he says.
Barry gives us a history lesson, saying that the FBI started doing DNA testing in 1989. He says innocent convictions happen surprisingly often, but exonerating the innocent isn't enough. "The most important aspect is learning from these cases what went wrong," he says. It's not only about these 200 some cases -- it's about learning from mistakes and fixing the system so that innocent people aren't convicted in the future.
"What Craig told you this morning I hope you recognize is really historic," he said. Craig is being successful politically because people see that he's talking common sense.
Barry says that Dallas County saves DNA samples so it's possible to go back and look at DNA evidence. "I truly believe that if there hadn't been a real problem with saving the evidence here in New York...we would have found many more wrongful convictions."
He introduces Alan Newton, who spent more than twenty years in prison for a crime that he didn't commit. Alan stands up in the back of the room, and the audience looks back, seeing the human face of the policy that the panel has just discussed. "What's really been going on here is something that's a phenomenon nationwide." Barry again mentions the common sense of rehabilitation and re-entry programs "We are on the eve of a criminal justice reform movement in this country," he says.
Andrea mentions the Wall Street Journal op-ed page, and says she's about to become very "unpopular" with the audience. She reads from an op-ed by Morris Hoffman: "They are not entitled to the post- conviction presumption that the criminal justice system is as unreliable as flipping a coin."
Barry can't resist throwing in what Steven Colbert has to say about freeing the innocent. "Colbert called us murder huggers," he says. The audience laughs.
Watkins says that "if you look at our history" the system has proven to be unreliable. It's about restoring credibility to the system so that juries -- made up of people like those in this room -- feel comfortable with evidence presented in a court room. "We didn't create this problem, we're just responding to it."
Andrea asks, "Is there a danger that we're creating a self-fulfilling prophecy?"
Eric talks about a national movement to incarcerate more people in the United States. "When you study criminal justice there are different theories of why you incarcerate," he says and mentions "incapacitation," just taking people off the streets. "All of a sudden you have 2.2 million people in prison in this country."
Eric mentions DNA evidence and the innocent conviction aspect. "75% of exonerations involve eyewitness identification... how many people are in jail in this country because eyewitnesses messed up?"
Spontaneous applause form the audience.
"Was that rhetorical?" asks Andrea.
Barry says that if you look at all felony arrests and compare exoneration rates it's an "infinitely small number." The point is, "what do we learn from all this," he says. He mentions using laptop computers and other "best practices" -- like videotaping interrogations -- that reduce wrongful convictions.
He says there is an upcoming Washington Post series about "composite analysis of lead bullets." Expert witnesses testified using bullet analysis for 30 years and used this practice to convict, and then three years ago the National Academy of Science said that was nonsense, that evidence just doesn't stand. "This is laying dormant now," he says, and all these cases are now in question. He says there are thousands of cases haven't been looked at, all from people that were convicted from questionable evidence.
"The truth is that...in this whole area of forensic science where frankly DNA has changed everything" I think we are seeing a huge change in all of these areas.
Andrea talks more about DNA, and the proposed database in New York that would keep DNA samples of anyone that is convicted. "What is the nature of the opposition?" she asks the panel.
Eric responds first, saying that the political opposition was initially liberal organizations that had a lack of confidence in the system. "We're running into logistical problems" because we don't put up the necessary resources. He says that we're caught up in the fact we need to expand more than the database -- we need better cataloging. He also mentions a "bizarre law" in New York that won't allow someone who's pleaded guilty to then later say they're innocent. "We need to close that loophole."
Barry mentions "elimination samples." He says that law enforcement was putting the DNA of sexual assault victims into their own local databank without victims' permission. He says that these local databanks shouldn't be kept -- that's invading people's privacy. "It's bad law enforcement, frankly, to take people's DNA without telling people what you're going to do with it." He says they should give up this system in return for expanding the statewide database. He says there's no value in taking samples from people -- "that's wrong."
Andrea jokes that "we're not collecting any DNA at this breakfast" and the audience chuckles.
Andrea: What about the flip side? Do we need to talk about prosecutor misconduct to talk about this issue? She mentions the Duke lacrosse team case.
Craig answers the question, mentioning prosecutorial misconduct in Dallas convictions. "I think they just get caught up in their minds in doing the right thing." The difficulty that we're faced with is to "change that mindset." When we convict the wrong person, the actual criminal is still out there committing crimes. It's not about just convicting someone, it's about convicting the right person.
Janet: DAs need to set the standard at a very high level. We need to remind prosecutors about our mission -- enhanced public safety for everyone in our community, but achieved through fair and just ways.
Eric says he has a question. "Is this an argument for why term limits are appropriate?" What would happen if the two DAs went back and looked at their own cases ten years later? Could they really correct their own mistakes?
Watkins says that he hopes that he would be able to correct a mistake that he made 20 years from now, "but we're human, and sometimes we don't."
Janet mentions her work in the community, and that there in no agenda in the prosecutors' office besides enhancing public safety. "When you have no wrongheaded agenda, mistakes happen," but the lack of agenda makes it easier to go back and admit mistakes. "We're not afraid to look back on our work."
Barry brings up the issue of inadequate defense, which just adds to existing problems.
Janet agrees. "We tend to focus on the police and prosecutors' work," she says. She talks about inadequate funding for defense lawyers, and how NY "doesn't put its money where its mouth is."
Craig also talks about the difference between prosecutors and defense attorneys. He says that a defense attorney has the role of getting a client off, but the prosecutor has to "take a step back, and say what's best for my community." Even if a defendant doesn't have adequate representation, the prosecutor has to take that into account.
Andrea says she has one last question. "You've all...spoken passionately about the system's flaws." How do you reconcile that with continuing to push for the death penalty?
Watkins says, "Well, you know, I'm from Texas,' in his Texas drawl, and the audience laughs. Watkins says he doesn't know if he's for or against the death penalty, and it "depends on when you ask him." It's the law in Texas, and we have a responsibility for enforcing it, he says. When I leave church on Sunday I feel like I'm against it, but then I see photos of criminals and I'm for it again.
Barry says that the statistics point to the inefficacy of the capital punishment. "The death penalty is not so much these days a moral question in this country," says Barry. Even though people in Europe say they're for capital punishment, they don't want it because they don't trust the state to get it right. Barry says that if you look at various aspects of the death penalty --- tremendous cost, actual deterrence rate -- it's just bad policy. He mentions that the death penalty may actually end in New Jersey and get repealed in Maryland. "It's no longer the third rail of American politics to say that you're against the death penalty," he says. "You can really see that this issue is changing."
Sounds like defense lawyers should try to find you on Sunday after church, Andrea jokes to Craig. Audience laughs.
Barry talks about trying to reform the death penalty in the early '90s, saying that at that point getting rid of the death penalty seemed impossible. "The best indicator of whether you might end up on death row is class, race, and intelligence," he says.
Time for guest questioners. The first question comes from Yale Law School Professor Ronald Sullivan. He mentions open files and how other institutional actors -- like police -- can undermine the work that prosecutors do.
Craig decides to answer, saying that DAs can put pressure on police departments to force them to investigate better and include witness statements in files. He mentions eyewitness identification, saying that if police departments don't address this, the public will see that reforms need to be at the police level. "I believe that they see the writing on the wall and they need to update their policy and proceedings."
Barry says that he can "vouch for that." He's been in the Dallas Police Department and has seen that the Dallas department has been far more willing to change than the police in New York City. "It's really really hard to move our bureaucracy in this city," he says.
Assemblyman Jospeh Lentol says, "Thank you for discussing all my bills," and the audience laughs. He says it's not only rogue databases that have kept the legislature from passing a comprehensive bill. Lentol is the chairman of the New York State Assembly Committee on Codes, which deals with criminal justice legislation.
He says that after the conference committee that Eric had previously mentioned, he ran into a Republican State Senator. The Senator said, speaking of several notorious case of innocent men who had been wrongly convicted and exonerated, that, "Maybe they weren't guilty of that crime, but you know they were guilty of something!" Slight gasp from a few members of the audience, and a frown from the panel. Legislation can't change until attitudes change.
Craig notes that politically it's important to build a coalition. Janet agrees, saying that in order to be effective the DA can't work in a vacuum. "We will only be as effective as our relationships," she says.
Janet mentions partners in the non-profit world, in government, and in the community. "We can't work unilaterally anymore."
Next question comes from New York State Senator Bill Perkins. He talks about advocating on the behalf of the "Central Park Five," five teens accused of the rape and murder of a jogger in Central Park. The teens, all boys ages 14-16, were ultimately concluded to be innocent after spending thirteen years in jail.
"There is a growing concern in communities of color, especially in New York City," for a special prosecutor who is not closely tied to the police department. He says that there's a lack of credible prosecutors who have the trust of the community.
Craig says that the same problems exists in Texas. "Even though we work closely with the police department we don't rubber stamp what they do." He says that the goal is to change that mentality.
Eric agrees, talking about the long term relationship between professional prosecutors and police departments. "That's another reason we need a truly independent sentencing department." He mentions a Republican State Senator who said that the boys must have been guilty of something to have been hanging out in the park. The Senator neglected to mention that the boys lived across the street from the park.
Barry talks about prosecuting police officers, and how difficult that type of prosecution can be. It is not a violation of the Constitution to go the crime scene and ask the officers immediately what happened after a police shooting case, he says. "if you don't get statements as they do in virtually every other major city across the country...how can you even do a crime scene?" Barry says that he's looked at a lot of police shooting cases, and that it doesn't violate officer rights to ask what happened. "That's the primary sticking point that we have in New York."
Susan Marcus, a public defender, has the next question. She says that she saw many innocent people pleading guilty because they were afraid of longer sentences. "What room is there in the advocacy community for these people?" she asks.
Eric talks about videotaping confessions, and says we're just scratching the surface on turning the public opinion around.
Andrea says it's time for last words from the panelists. What should the public be doing, and will New York ever be a leader on issues of innocence and criminal justice reform?
Barry says that New York can be a leader on these reforms. He's impressed with what Craig said at the beginning of the morning. "Wouldn't it be great if Dallas began leading the way?" Barry says he's optimistic because something historic is happening in Dallas.
Janet is optimistic too. "We have many forward thinking people on the prosecution, and the police and the defense side," she says. Janet goes back to the ideas that the reforms "aren't liberal, aren't conservative, they're about enhancing public safety."
Eric is optimistic, too! He talks about treatment and rehabilitation, saying that the data exists to show which programs work. He again mentions Lentol's legislation, saying he's optimistic for passage of the bills in 2009.
Craig says that the Innocence Project has been doing good work across the country, and that New York shouldn't be left behind.
"We don't just have to talk about this rhetorically," says Andrea, wrapping it up. We can put this issue into practice, as members of this panel have shown.
Comments? Questions? Help us continue this conversation on the DMI blog!