"Innocence Commission" Bill Poised to Return but Faces Uphill Climb

State Rep. Ruth Jones McClendon, D-San Antonio, was stunned during the 2011 legislative session when a bill she sponsored that would have created an “innocence commission” to investigate cases of wrongful conviction was shot down on its third and final reading.

HB 115 had gone through its first two readings and passed by an 82-54 margin. But the next day, it was defeated by a 51-91 vote. "It was my assumption it was going to pass," McClendon said. "It was a shock."

Calling the commission’s approval a crucial step for ensuring Texas improves its record on wrongful convictions, McClendon plans to revive the bill when lawmakers meet this spring. "We've got to show accountability at all levels of law enforcement, prosecutors and the courts,” she said. "We need a single agency to take a dedicated and focused approach."

But McClendon admitted “it’s going to be an uphill battle,” with opponents saying such a commission would meet massive bureaucratic obstacles, turn exonerations into political battles and distract from other needed criminal justice reforms.

Part of the opposition comes unexpectedly from the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. Attorney Jeff Blackburn, the founder and chief counsel for the Innocence Project of Texas, said such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system."

He argued that the commission would serve as a vehicle for self-congratulation. "I'm sick and tired of hearing from everybody about how great we are, and how much progress we've made, when we have a pathetically underfunded innocence program,” he said, referring to his own organization. “I'm concerned about too much cheerleading over too little progress.”

McClendon’s original bill called for a nine-member group, appointed by the governor, that would "ascertain errors and defects in the criminal procedure used to prosecute the defendant's case at issue" and recommend "procedures" to ensure wrongful convictions happen less often.

But because those solutions would probably involve targeting prosecutors who participated in wrongful convictions, Blackburn thinks creating the commission would inevitably involve debilitating compromises with prosecutors and judges who are “resistant to looking into old convictions."

"This won’t be a touchy-feely commission where everyone gets along,” he said. “We're not ready for kumbaya moments yet.”

State Rep. Tryon Lewis, R-Odessa, said the Innocence Project’s opposition to the bill was part of his decision to vote against it in 2011.

He said he thinks it would be better to have a law school or nonprofit organization do the work of looking at wrongful convictions. "That's probably a better route to go than to create another bureaucracy," he said.

Both Lewis and Blackburn agree that the commission would become “politicized” like the Texas Forensic Science Commission, created by the Legislature in 2005, which became a political flashpoint over the high-profile case of Cameron Todd Willingham.

In North Carolina, an innocence commission established in 2006 has already been pulled into controversy as prosecutors try to limit access to defendants who initially pleaded guilty to their crimes. In Florida, a similar commission founded in 2009 by the state’s Supreme Court had its legislative funding vetoed by Gov. Rick Scott this summer.

Nationally, Texas ranks third for the number of proven wrongful convictions, according to a recent report by the Center of Wrongful Convictions at the Northwestern University School of Law.

State Sen. Joan Huffman, R-Southside Place, a former prosecutor and judge, sees plenty of safeguards now in place to prevent wrongful convictions. “I certainly understand and appreciate the need and obligation we have to get this right,” she said. “But I do not believe this would be anything other than a place for people to rant and rave about what they don't like about the criminal justice system."

At the Texas Tribune Festival last month, state Sen. Jose Rodriguez, D-El Paso, said his former career as a prosecutor led him to the opposite conclusion. "I feel very strongly about ensuring we do everything we can to avoid an innocent person getting convicted wrongly," he said, adding that Texans "will have much more faith and confidence in the system if people are held accountable."

McClendon believes she can get past the reluctance of people who think the commission would simply target prosecutors, an increasing concern with the upcoming court of inquiry looking for possible misconduct in the wrongful conviction of exoneree Michael Morton.

"It's going to take a lot of talking to prosecutors, to show them we're not trying to punish them,” she said. “We need their buy-in.”