Why Do Some Counties Have More Identified Wrongful Convictions Than Others?

In the article below, a reporter has interviewed a prosecutor from Tarrant County, which has had only 1 DNA exoneration, and which borders Dallas County, which has had many, many wrongful convictions identified through DNA.  The prosecutor claims that the prosecutors in Tarrant County simply has been more careful than prosecutors in Dallas County, and cites one good fact:  Tarrant County had open-file discovery for decades, while Dallas County didn’t institute it until 2006.   But I also know that Dallas County is rare in that it has actually saved the DNA in old cases at a much higher rate than most other counties.   The question I’m left asking about Tarrant County is whether it has save all the DNA in all the old rape and murder cases like Dallas County.  If not, then that, to me, is the biggest factor.  You can’t have many DNA exonerations in your jurisdiction if you haven’t saved the DNA.

From the Star-Telegram.com:

Whenever people hear about the exoneration of another wrongly convicted person in Texas, the odds are the case is out of Dallas County.

Just three months ago, two more Dallas men were freed after serving almost 30 years of their 99-year sentences for a rape they did not commit. James Curtis Williams and Raymond Jackson became the 31st and 32nd men to be cleared by DNA testing in Dallas County since 2001.

In that same time period a total of 41 people in Texas had been exonerated as a result of post-conviction DNA testing, proving — as in the case of Williams and Jackson — that the victim or witness who identified them as the perpetrator was wrong.

The sickening statistics in Dallas County got me wondering why things were so different in the adjoining county of Tarrant, where there has been only one exoneration since 2001, the year Mark Amos Webb was freed after serving 13 years of a 30-year sentence for a sexual assault he did not commit.

My first suspicion was that Tarrant County was routinely and arbitrarily denying inmates’ requests for DNA testing. What else could explain the difference?

While it is true that Tarrant County has denied the vast majority of requests for post-DNA testing, there is nothing arbitrary about it, Assistant Criminal District Attorney Steven Conder explained to me.

In the last 11 years, Conder said, 170 convicted inmates have asked for DNA testing in their cases. Of those, 141 were denied and 25 have been granted so far. Five of those granted are still in the testing or further analysis process, but results from the other 20 tests show 12 were determined “inclusion” (confirmed defendant’s guilt), one was “exclusion” (not guilty), and seven were inconclusive.

Among those still being tested are two cases brought by the Innocence Project of Texas, which has been a driving force in fighting wrongful convictions in the state.

Under Texas law “the trial judge makes the decision whether to grant a defendant’s request for post-conviction forensic DNA testing,” Conder said. “The statute sets out five requirements for testing, but most litigation involves only two of the requirements — whether identity was or is at issue, and whether the defendant has established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing [a.k.a. substantial evidence of guilt].”

Conder said the DA’s office has argued against testing in cases where a defendant raises an avoidance defense such as self-defense or consent, noting that the department’s “position is that DNA testing is for determining the perpetrator and not their reason for the conduct.”

Prosecutors also have contested identity where the defendant was caught in the act or where there was a third-party witness to the crime. He mentioned specifically a case where the perpetrator was stopped and the victim’s body was still in the car, and one where the accused was caught hiding in an attic where the crime occurred.

In addition to opposing testing based on those grounds, Conder said the office also objects where more significant evidence, such as blood and semen, has been tested and connected to the defendant, and where the trial testimony demonstrates that evidence sought to be tested played no part in the commission of the crime.

He stressed that judges do not deny DNA testing based on whether his office contests it, explaining, “There have been multiple cases where testing has been ordered where we have contested it.”

So, the simple answer as to why Tarrant County’s exoneration rate is lower than Dallas’ is because Tarrant County has made fewer mistakes than the larger county to the east.

Conder attributes that to the fact that Tarrant County has always had “a lot more disclosure” than Dallas, having had for a long time an open-file policy permitting defense attorneys access to prosecutors’ files before trial. Dallas County didn’t institute such a policy until 2006.

“Cases that shouldn’t have been tried, we didn’t try them,” Conder said.

This is not to say that there are no other wrongly convicted people from Tarrant County, but it’s good to know there have long been procedures in place that helped prevent many of the horrendous miscarriages of justice we’ve seen in Dallas and other places around the state.

Note: In Wednesday’s column, I’ll talk about a specific request for DNA testing that won’t happen because the evidence is missing.