Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Last night as I was driving to Austin I had the good fortune to listen to an interview on the The Catholic Channel with Rev. Carrol Pickett. Rev. Pickett was the minister at the Walls unit in Huntsville for 16 years, and during his time he was present at 95 executions. He would be the inmate from 6:00 a.m., until they were executed shortly after midnight. (now they do it at 6:00 so everyone doesn't have to stay up all night). After each execution, he recorded his thoughts on a recorder as a form of therapy. We all now  have the privilege of  listening to some of those recordings.

During the interview he made a statement that almost caused me to  have a wreck. Without any hesitation, he stated that he knows 15 of those 95 inmates that were executed were actually innocent!! That means that in our so called quest for justice, we have killed 15 people for no reason. As has been pointed out before, that also means 15 people have gotten away with murder - at least a few of those have probably gone on to commit other murders. I've discussed before the attempts to estimate the number of innocent people in prison. According to these numbers, its around 15%.

Rev. Pickett is the subject of an independent film, At the Death House Door, that debuts on May 29. If its anything close to  his interview, it should be fascinating.

When he started talking, I wasn't sure where he stood on the death penalty. He eventually made his position abundantly clear - he is absolutely opposed to it. He quoted on the inmates he counseled, who summed it up perfectly: "what sense does it make for the State to kill someone, to convince everyone else that its wrong to kill people?"

While his discussion of executing innocent people got my attention, that was not what struck me most about the interview. When he finished, my one thought was how fortunate those 95 men were to be able to spend their last hours on earth with him. He is truly a remarkable Christian man - someone that is able to Jesus in others, even those condemned to death.

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a recent editorial in the Dallas morning news championed the idea of creating an innocence commission in Texas.  The editorial was in response to a meeting last week in the legislature, which drew representatives from all branches of the judicial process, namely prosecutors, defense lawyers, police, and judges.  Senator Rodney Ellis is again introducing legislation to create such a commission.  One can only hope that it has enough support this time to actually have a chance of success.

Unfortunately, similar legislation in the past has been the victim of politics.  I participated in one of the committee meetings several years ago, and presented evidence along with Barry Scheck of the Innocence Project.  At that time, the idea of creating an innocence commission was strongly a opposed by the prosecutors, and died a quick death.

I believe the only way to effectively deal with wrongful convictions is the creation of such a commission, that includes an independent panel to review convictions.  The judicial process is not equipped to deal with these claims.  Granted, relief has been granted in a handful of cases.  However, most of those involved DNA evidence, and there was no argument that the person was actually.  The problem is with all the other cases, where there is no such convincing evidence.  Where there is any question, judges are hesitant to grant relief.  Unfortunately, that is one of the consequences effects of electing judges, who have to worry about the political ramifications of their decisions.

Prosecutors also fall short most of the time.  Law school teaches us all to be advocates for our cause.  We also are taught that we have an adversarial system.  Unfortunately, that system does not function well in this area.  Prosecutors too often oppose innocence claims merely because that is what they perceive they are supposed to do.  Most of the time it is probably not even a conscious decision.  No prosecutor wants to admit that they are responsible for prosecuting someone who is actually innocent, and often they refuse to seriously look at the newly available evidence.  Defense lawyers also bear some of the responsibility.  Too often frivolous claims are advanced, merely because someone is representing their client.  No one has an absolute right to present an innocence claim, and lawyers should not take on a case unless they are convinced first that the person is actually innocent.

I'm not naïve enough to believe that an innocence commission is not going to suffer some of the same defects.  However, it has to be a better way to process claims.  Let's hope this time that both parties can agree the time has come for an innocence commission in Texas.

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A recent Dallas Morning News editorial applauded District Attorney Craig Watkins for agreeing to scrutinize non-DNA case. I applaud him too; unfortunately, he is probably going to be in the minority. In fact, I would be surprised if any other elected District Attorney decides to follow his lead. In non-DNA cases, the knee jerk reaction is to fight them tooth and nail. In the absence of conclusive proof (like DNA) few prosecutors are going to agree that a person is innocent. I have seen this most often in recantation cases. Granted, most recantations are false, but many prosecutors refuse to acknowledge the possibility that at least some of them are true. If you plead guilty, your odds are even worse. Until prosecutors are willing to honestly accept the fact that there are a substantial number of innocent people of prison, this problem is not going to be resolved.

A recent blogger reported a prediction that the next wave of innocence cases will be arson convictions. I certainly hope that's true, because I have one. Almost everyone agrees that what was known about arson investigation back in 1980's was wrong; much of it was nothing more than "old wives tales". The result was that many fires were declared to be intentionally set, when they were probably accidents. These cases are unique, because you are not claiming someone else committed the crime; in fact, no crime was committed. Unfortunately, that has been the biggest hurdle to overcome, because many people refuse to believe that no one is responsible for the deaths that result from these fires.

DNA cases are easy, especially when you can prove who actually committed the offense. These cases are far more difficult, although the defendants are no less innocent. Judges and prosecutors are going to have to step up and do the right thing. I hope I'm wrong, but I think Mr. Watkins is going to be part of a very small minority. I hope voters don't hold that against him, and you know it will be an issue. Even if they do, I have no doubt he will be rewarded.

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In my career I've been blessed to help in securing the release of an individual who had been wrongly convicted of capital murder, and imprisoned for more than 16 years. As a result, I consistently have inmates and their families contact me about taking their case. I currently have a few such cases, and have a special interest in ensuring we identify those who are actually innocent. So a recent news story caused me a great deal of consternation. Two lawyers had received a confession from their client to a murder that someone else had been convicted. So they knew that an innocent person was in jail - and he stayed there from 26 years. The truth didn't come out until the client died, and the lawyers released the information (having obtained the client's permission to do so). As lawyer, we must always protect the confidences of our clients. In this one small way, we are like priests. So they were right in not disclosing the information. That doesn't mean they didn't have a few sleepless nights over the years. Not surprisingly, this has been the subject of comment. Sometimes being a lawyer is not all its cracked up to be.

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It has become common to see reports of people being released from prison after establishing their innocence. The majority of those cases involve DNA evidence, which is not suprising. Almost no one can argue with the results of a scientic test that can establish someone did not commit an offense. Unfortunately, DNA testing can only be done in a small number of cases, and there are no such tests that can be used in other types of cases.

Since it is now accepted that innocent persons are convicted, many people wonder how many innocent persons there are in prisons across the country. A few people have tried to come up with formulas to determine how often innocent persons are convicted. Some people have argued the rate is somewhere between .27% and .65%. However, the process for coming up with those numbers often does not account for the limited number cases in which scientific evidence is available. To come up with an accurate number, you would have to compare the number of exonerations with the number of sexual assault and murder convictions, since those are the type of cases in which physical evidence is often available. Of course, some allowance has to be made for the number of cases that are not tested, since only a handful of cases are ever subject to post-conviction review.

Recently, the Virginia Department of Forensic Science found a number of closed rape cases with untested DNA evidence. So far, out of 29 cases tested, 2 wrongful convictions have been uncovered. If that ratio remains consistent, the error rate would be 7%. A review of death cases by law professor at Seton Hall University produced an error rate of 2.3%. While those percentages might seem low, the real life affects are enormous; With a 2% error rate, there are 20 innocent persons for every 1,000 convictions.

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Over the last few years it has been common practice to take a DNA sample from persons convicted of certain offenses, and submit it to a national database. The obvious goal is have someone to compare unknown samples. The database has already produced several "cold hits", where previously unknown suspects were identified. Although there have been challenges to collecting the samples, those have not been successful to date, and probably won't be as long as it is limited to persons who have actually been convicted. What if you take samples from everyone who is arrested though? And what if you keep those samples even if the person is exonerated, or charges or never filed. That is the situation that currently exists in Britain and the process is being challenged in the European Court of Human Rights. DNA testing is not the foolproof system it was once thought to be; mistakes do occur, and people have been wrongly identified. How tragic would it be if an innocent person is dragged through the justice system again because of a faulty DNA hit? Let's hope the court does the right thing - otherwise we may be dealing with the issue here.

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