Prompted by accusations that people are in prison for crimes they did not commit, Texas' top jurists are supporting a proposal to create a statewide Innocence Commission to investigate wrongful convictions and recommend criminal justice reforms.
Wallace Jefferson, chief justice of the Texas Supreme Court, the state's highest civil court, voiced support for a commission in 2005 and 2007. Now he said he is specifically calling on state lawmakers to find money for the effort.
"I haven't heard an objection that persuades me that it is not a good idea," Jefferson said. "What better way to spend public dollars than to make sure the innocent doesn't go to jail?"
Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, the state's highest criminal court, said she is willing to offer qualified support for a "blue-ribbon committee" to look at wrongful convictions.
"We need to make efforts to make sure that wrongful convictions do not occur," Keller said. "I don't oppose any effort to find out what went wrong with these cases."
Keller said she doesn't want the commission to duplicate efforts by Innocence Projects statewide and nationwide that are studying the factors that lead to wrongful convictions, such as poor eyewitness identification and attorney misconduct.
"One of my concerns is not to implement fixes for the sake of implementing fixes," Keller said. "I do believe there are ways to make convictions more secure and avoid wrongful convictions, and I hope we take advantage of them."
The support for a commission follows a summit at the state Capitol this month where nine exonerated men called on lawmakers to examine the causes of wrongful convictions and try to prevent them.
Previous efforts to form an Innocence Commission have not won the support of lawmakers. Critics have said the fact that 33 men have been exonerated -- 17 in Dallas County since 2001 by DNA testing -- shows that the system is working fairly well.
Gov. Rick Perry does not believe that an Innocence Commission is necessary, said Allison Castle, a spokeswoman for the governor.
She noted that Perry has supported efforts to improve the system for providing attorneys to poor criminal defendants and has strongly advocated post-conviction DNA testing.
"He is committed to providing a fair criminal justice system. But the governor's sentiment is that we don't need another layer of bureaucracy," Castle said.
District attorneys also fear that the Innocence Commission could become a forum for bashing prosecutors and law enforcement rather than for an honest discussion of problems that leads to reforms.
"They feel like people are drawing conclusions about the system when they have a superficial understanding of how it works," said Shannon Edmonds, director of government relations for the Texas District and County Attorneys Association. "They don't trust the people pushing it, and we need to overcome that to make progress in this area."
State Sen. Rodney Ellis, a Houston Democrat who sponsored the failed Innocence Commission bills, said the state needs a commission to review wrongful convictions just as it has agencies to examine plane crashes.
"Clearly there is a need to restore confidence in the criminal justice system in Texas," Ellis said.
"I'm asking that people look at the large number of exonerations and show some leadership and use the moral authority of their good offices to move this process forward," he said.
A national trend
At least six states have created or considered similar commissions, according to the Innocence Project in New York.
In 2006, North Carolina and Pennsylvania created commissions after DNA exonerations. Agencies in California, Connecticut and Wisconsin are looking at minimizing the factors that lead to wrongful convictions.
Larry Golden, co-director of the Downstate Illinois Innocence Project, said a commission in Illinois spent two years studying capital cases and proposed changes to provide safeguards against additional wrongful convictions. Now Illinois is establishing a commission to look at noncapital exonerations and make similar recommendations.
Golden said that while some see the commissions as just more government agencies, the commissions force policymakers to look beyond individual cases and at the larger problems that lead to wrongful convictions.
"What happens is that these commissions provide the evidence and the leverage to get the policymakers to change," Golden said. "There is a lot of reluctance by prosecutors and law enforcement folks to change. They will often oppose things when, in fact, they appear very reasonable."
The Texas version
In Texas, Ellis' Innocence Commission bill in the last Legislature would have created a nine-member agency appointed by the governor, lieutenant governor and speaker of the House, among others.
The commission would have looked only at wrongful-conviction cases in which the defendant had officially been cleared. It would not have interfered with ongoing appeals by investigating prisoners' innocence claims.
"I think these exonerations have kept coming and that we've reached a critical mass and that people will demand action," said Edwin Colfax of the Justice Project in Austin.
While lawmakers can consider individual bills suggesting changes, a commission backing those changes would include all major stakeholders, including prosecutors, allowing the reforms to be approved quickly, Colfax said.
Among the Justice Project's recommended changes:
An expansive open-file policy that allows a defendant's attorney access to the prosecutor's information.
Requiring pretrial notice of information coming from a jailhouse informer.
Retooling procedures to get the most reliable information from eyewitnesses during in-person and photo lineups.
A review of forensic laboratories and preservation of evidence, especially biological material.
"I think it is absolutely essential for the state to have a mechanism to review the mistakes the government makes," Colfax said. "This is a straightforward, good-government bill."
A closer look
A bill that state Sen. Rodney Ellis sponsored would have created a nine-member Texas Innocence Commission:
Two gubernatorial appointees: the dean of a law school and a law officer.
One member appointed by the lieutenant governor. Legislators would be eligible.
One member appointed by the speaker of the House. Legislators would be eligible.
A member of the judiciary appointed by the presiding judge of the Texas Court of Criminal Appeals.
A forensic scientist picked by the Texas Forensic Science Commission.
A prosecutor picked by the Texas District and County Attorneys Association.
A criminal-defense attorney picked by the Texas Criminal Defense Lawyers Association.
An attorney with appellate experience representing one of the three innocence projects at three state law schools.
Source: Senate Bill 263
Where some of the key players stand in the debate
Gov. Rick Perry does not support an Innocence Commission, calling it another layer of bureaucracy.
Wallace Jefferson, Texas Supreme Court chief justice, and Sharon Keller, Texas Court of Criminal Appeals presiding judge, support creating a commission.
Lt. Gov. David Dewhurst has said he supports creating a commission. His staff said he has cleared the way for a Senate interim study committee to look into the commission's charge.
Texas House Speaker Tom Craddick expects the commission to be debated in the legislative session that begins next year.