Making justice just

The following editorial was published by the Houston Chronicle on May 14, 2011.

In every wrongful conviction, something went wrong. We need to know what.

In airplane flights and in criminal convictions, close isn't good enough. At the end of a thousand-mile jet flight, hitting the ground only a mile from the runway counts as a disaster. And we treat it like one: The NTSB investigates to find the cause, and uses that information to prevent similar crashes in the future.

Unfortunately, we're not so vigilant about wrongful convictions — even though DNA evidence shows that too often, Texas has imprisoned men who only resembled the actual perpetrators, or who were unfortunately close to the wrong place at the wrong time. Texas, with more than 40 such exonerations, counts more of these overturned convictions than any other state. And as more evidence is tested, the number continues to rise.

Each of those wrongful convictions was a disaster. The wrongly convicted lost all semblance of freedom and normal life, while the real perpetrator remained at large, free to commit other rapes, robberies or murders. Taxpayers footed the bill for both the unfair prison sentence and any later restitution. And with each miscarriage of justice, our collective faith in the judicial system eroded.

Right now, though, Texas doesn't systematically investigate those disasters or make sure that the underlying mistakes never occur in the future. We don't systematically address systemic problems - for instance, with the procedures that police use to do lineups or test evidence.

A pair of similar bills in the Texas Legislature - SB 1835 by Rodney Ellis, D-Houston; and HB 115 by Ruth McClendon, D-San Antonio - would change that. Those bills would establish a state innocence commission to probe wrongful convictions the same way that the NTSB probes crashes.

The commission would be named after Timothy Cole, a Texas Tech student who, after being wrongly convicted of rape, died in prison. In Cole's case, the problem lay in faulty eyewitness testimony - once the gold standard of proof, but now understood to be far less reliable than once believed. Because victims have an uncanny ability to pick up on investigators' subtle, unspoken cues, it's important that such cues be minimized - no fair if one photo is color, but all the others black-and-white - and that lineups be double-blind, administered by officers who don't know which person investigators actually suspect.

Changes to lineup and questioning procedures, and similar troubleshooting improvements, are often simple and cheap - especially when compared to the cost of a single wrongful conviction. Yes, we believe that wrongful convictions are relatively rare in Texas - but so are airplane crashes. Our justice system deserves similar vigilance.

A single mistake is horrifying. But never uncovering the mistake, and continuing to repeat it, is far worse.