Updated to include an additional interview.
A Fort Worth Star-Telegram editorial published this weekend concludes that Tarrant County has not exonerated nearly as many innocent prisoners as Dallas County simply because it did not wrongfully incarcerate them in the first place. This black-and-white view is too simple for what's become a thorny issue across the state.
Tarrant County Assistant Criminal District Attorney Steven Conder handles post-conviction and DNA testing requests and was the main source in the Star-Telegram column.
He contends that Tarrant County's long-standing open file policies are the primary reason there's been only one exoneration. Traditionally, Tarrant County has had "a lot more disclosure" than Dallas, permitting defense attorneys to access prosecutors' files in advance of trial, leading to fewer wrongful convictions, Conder tells Unfair Park. Dallas didn't have such a policy, at least not formally, until recent years.
Mike Ware, a Fort Worth criminal defense attorney who lead the Conviction Integrity Unit in the Dallas County District Attorney's office until last year, doesn't feel the Star-Telegram's conclusion that open files explain lack of exonerations is well-supported. "He just doesn have near enough information to reach that conclusion," Ware says.
The writer of the Star-Telegram piece deduces that stewards of criminal justice in Tarrant County can rest easy: "[I]t'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."
That seems patently ridiculous to Jeff Blackburn, an Amarillo criminal defense attorney and chief counsel to the Innocence Project of Texas.
I sent Blackburn the link and asked for his thoughts as someone who's handled innocence cases around the state.
His response: "That's baloney, and awfully smug. How about a call."
He says the discrepancy between the number of people exonerated in Tarrant County and Dallas County isn't due to the system that locked them up but to the system that's freeing them. In many cases, Tarrant County doesn't have the biological evidence to test, Blackburn and Ware both point out. Dallas does, has for decades.
Asked for his take on the issue, District Attorney Craig Watkins sent a statement through his media contact:
The Dallas County District Attorney's Office is committed to its Conviction Integrity program and ensuring that we continue to seek the truth in all cases. We were fortunate that Dallas County had the foresight to preserve biological evidence for decades post-conviction. As it pertains to other jurisdictions in Texas, it would not be appropriate for us to comment on how other jurisdictions pursue justice.
In Tarrant County, there has been one exoneration since 2001. Here's the breakdown from the Star-Telegram:
In the last 11 years [in Tarrant County], 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.
"In Dallas County, [previously denied requests] were the first thing we looked at," Ware says, referring to when the Conviction Integrity Unit established in 2007 to reexamine innocence claims. Dismissing the denied requests in Tarrant County as invalid begs further questioning, he says.
While only one exoneration resulted in Tarrant County, there have been more than 30 in Dallas.
"The only thing that makes Dallas an anomaly is that they retained DNA evidence and other counties didn't," Blackburn says. "Dallas was just a historical accident, that's it." Additionally, Ware says, Dallas County has been aggressive in ordering more elaborate additional testing in cases deemed 'inconclusive.'
Consider this, Blackburn adds: Cases involving DNA evidence are only a small percentage of potential innocence cases. Cases where the DNA evidence was preserved for later testing are an even tinier percentage. And a District Attorney willing to routinely test that evidence is even less common.
With that, he concludes, "Now we're talking about a group of one. That would be Dallas County," where District Attorney Watkins is willing to reexamine these cases on a regular basis.
It's "simply not the culture" elsewhere, he says. And because of that, lawyers are more prone to take on innocence cases in Dallas. Such cases take a tremendous amount of time and money, and that currency goes a lot farther here, where hurdles to testing are far less challenging than elsewhere in Texas.
Blackburn doesn't see Tarrant County as being any better or worse in terms of wrongful convictions than most other District Attorney's offices around the state. Dallas is simply an outlier in that the evidence was preserved and Watkins has made it a major priority to free the innocent.
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Conder reviews requests for post-conviction DNA testing on a case-by-case basis, determining whether the evidence is available and could conclusively determine innocence or guilt.
Tarrant County, he says, stored quite a bit of biological evidence dating back to the early 80s, but not to the extent Dallas did. He agrees that this could be a factor in why Dallas has so many more exonerations, but does not agree that it's the main factor.
"I would probably put the open files first, then the handling of the offices, then the evidence storage. I think all of those components come into play," Conder says.
Ware agrees Tarrant County's longstanding open file policy is "certainly" a contributor to the county's significantly smaller exoneration numbers. To the extent that open files can explain the major discrepancy in exoneration numbers between these neighboring counties, he says, is "erroneous logic."