If you play around with data from the National Registry of Exonerations, which has tracked some 2,300 exonerations across the country, the recent drop-off in Dallas County becomes apparent. From 2007, when former District Attorney Craig Watkins took office and created the nation’s first Conviction Integrity Unit (CIU), through 2015, when Watkins lost his bid for re-election, there were 31 people exonerated. That’s about four a year.
In the four years since then, there have been five—total.
As Jessica Pishko dove into for us earlier this year, the reasons for the slowdown are many. Even when Watkins’ quick-in, quick-out successor Susan Hawk was around, she didn’t make exonerations a priority. Faith Johnson, who will leave her office in January after losing in the midterms, said publicly that she wanted to do better—and she has. But people close to the unit told Pishko for her story in May—and repeated to me more recently—that the appellate section has continued to have a say in cases the CIU is re-examining, which was something that didn’t fly under Watkins. Appellate and trial attorneys will generally have a more traditional take on the role of the DA’s office.
“Ninety-five percent of the prosecutors still think their job is to put people in prison,” says Dallas defense attorney Gary Udashen, “not get them out.”
Too, many exonerations during Watkins’ run came from DNA tests that pointed to someone other than the original perp. Watkins’ CIU—started by Mike Ware, who today heads the Innocence Project of Texas—was able to reverse appellate opinions upholding trial court decisions to deny those tests (“There are all kinds of judicial fingerprints all over this travesty,” says Ware). Those reversals led to a handful of exonerations—granting DNA tests to inmates who hadn’t been denied so much as ignored led to more—but Ware isn’t on board with the simple notion that a shorter list of inmates awaiting DNA tests is the reason for a drop-off in freeing the innocent.
“It’s a factor,” he says. “I’m not sure how big a factor.”
All to say this: Something has been going on within Dallas County’s CIU. Its ineffectiveness puts it on a path toward what some would call a Conviction Integrity Unit In Name Only, a unit that exists because it’s politically favorable to have one but it doesn’t do much for innocent people behind bars. But with the victory of DA-elect John Creuzot last month, there’s mounting optimism that Dallas County’s unit could get back on the right track.
In a recent interview, Creuzot was asked about the appellate section’s influence over the conviction integrity unit. His answer came quick: “It will not operate that way under me.”
Even before he took the vote by 20 percentage points in November, Creuzot won the favor of much of Dallas’s tight-knit exoneree community.
“A lot of times when Craig Watkins was in office, he’d allow us to bring him cases and he’d re-open them up,” says Christopher Scott, who became Dallas County’s first non-DNA exoneration in 2009 after 12 years in prison for a bogus murder conviction. “Obviously, Faith Johnson and Susan Hawk weren’t doing it.”
Creuzot’s exoneree support has roots in his judicial handling of the case of Charles Chatman. After previous DNA tests had proved inconclusive, Creuzot OK’d an advanced DNA examination called Y-STR testing, risky because it used up the last bit of the biological evidence related to Chatman’s case. But the risk paid off; the test proved someone else did it, and in 2008, 27 years after he’d been sentenced to 99 years for aggravated rape, Chatman was exonerated. It was one decision, but it’s a data point that hints at where Creuzot’s head may be. For exonerees like Scott, it contributes to a new hope that things will turn around under the new office.
“We’ve already made contact with DA Creuzot and he’s willing to have a meeting with all the exonerees,” he says. “We’ve got to hold him accountable.”
One difficult test for Creuzot’s CIU will come via the case of Andrew Roark. The DeSoto resident dialed the cops in July 1997, after his girlfriend’s one-year-old daughter was having trouble waking up. He would be arrested that night and accused of shaking the child.
At trial, prosecutors had expert witnesses lay out the case for child abuse while the defense presented evidence that the girl, who lived, had suffered a series of short-distance falls—hitting her head on a coffee table, falling off a bed, and hitting her head in the bathroom. Physician experts maintained the injuries in this case would’ve had to come from something as extreme as a major car accident or a fall from a two-story building. Roark was convicted, on March 14, 2000, of Injury to a Child. He was sentenced to 35 years.
But over the last decade, the thinking on cases of shaken baby syndrome has evolved, and convictions across the country have been overturned. Roark’s lawyers assert new science dictates that the conviction be set aside.
In 2014, in entering an agreement with the Innocence Project of Texas, Watkins’ administration concurred. A 2014 finding of fact filed by a Dallas County criminal judge reflected that agreement. The judge supported assertions that several pieces of evidence presented at Roark’s trial are contradicted by modern science: that the subdural hematoma—bleeding on the surface of the brain—the girl suffered could not have been the result of a short-distance fall; that shaking alone could not have caused the girl’s injuries; that there can’t be a “lucid interval”—a temporary improvement after head trauma—in cases of subdural hematoma; and that a “rebleed” couldn’t have played a role in the injuries.
It’s the Court of Criminal Appeals, however, that has the final say, and Watkins left office with the trial judge’s opinion on the clerk’s desk. It would never get sent to the Austin-based CCA because of meddling from Hawk’s appellate section. The DA dropped its end of the agreement, and Udashen, who represents Roark, found himself at a stalemate.
Earlier this year, he decided to focus his efforts specifically on the subject of rebleeds, an area in which he says there is an excess of new science contradicting evidence presented at trial. That, he felt, was the easiest route to getting the DA’s office on his side. He submitted a memorandum in June and added an expert’s affidavit in August. Udashen says his correspondence with the DA’s office has since become more productive, and that the two sides seemed to be moving toward reaching an agreement.
But at this point, progress in the case will almost certainly come under Creuzot.
As he closes up his months in private practice—which came after he retired in 2012 from more than two decades as a criminal judge—Creuzot has been reluctant to dive into the specifics of the cases that will await him. “My problem is I still have some cases and I can’t get engaged and involved in DA business right now and still represent clients,” he said in early December. “I’m trying to get these last things cleared out so we can start meeting and get a true transition.”
Although it’s impossible to say how he’ll handle Roark’s case, Creuzot’s rhetoric has hinted that he’ll refocus the office on freeing the wrongfully convicted. In a recent interview, he spoke highly of CIU Chief Cynthia Garza and said he hopes she sticks around. He says that a high number of DNA cases made exonerating people in the past a simpler task—it’s hard to argue with biological evidence. But the new norm for the CIU involves examining thing like bad IDs on police lineups, ineffective assistance of counsel, and hidden evidence. “I’d say they’re more complex and they’re not as easily resolved,” says Creuzot.
That makes it, to Creuzot, an issue of manpower. He floats a few solutions. For one, the county will soon receive a $624,000 grant to add a CIU prosecutor, investigator, and support staffer for 2019 and 2020. Over time, Creuzot says he’ll look at adding permanent staffing to make the unit less reliant on grants. “If you stop prosecuting marijuana cases,” he says, touching on a pillar of his campaign, “you may free up a prosecutor or two that you can move into the section.” He says he wants to look at “the number of cases that are there, the number of cases that may come in, and see what an appropriate staffing level may be.”
His more outside-the-box idea is to outsource, asking civil firms in town to pursue cases on a pro bono basis. He envisions interested civil firms investigating one or two cases at a time under the direction of the DA’s office. Innocence Projects have called on pro bono help from civil firms, but it’d be a new step for a DA’s office, at least to the knowledge of Ware and Udashen.
In the opinion of Watkins, the man who started this conversation and who explored his own 2018 run to get back into the DA’s office, success for Creuzot will come from expanding the idea of what a CIU can and should be. Watkins says the next frontier lies with innocent people who, in desperate moments, accepted plea deals for probation.
“If you’re an honest DA, you have to take an honest look at that,” Watkins says, tucked into a conference room of his private practice in South Dallas. “These people, although they probably never went to prison, they do have criminal histories.”
These deals are most common with lower level offenses, but Watkins points out instances in which prosecutors have offered probation for murder when the case is weak. “If the DA said to the public, ‘Look, these are some of the cases I think I need to look at,’ then you’ll see some of those individuals coming forward and saying, ‘This happened to me,’” says Watkins.
In assessing Creuzot’s opportunity to lead a successful CIU, Watkins points out the difficult hand his predecessor was dealt.
“I think she had a lot of fixing to do across that whole office,” he says. “Creuzot, now, he’s going to have four years.”
There’s little doubt that the CIU’s success will be a reflection of Creuzot’s willingness to give the section the attention and respect it deserves. “An effective CIU is not going to exist unless the DA establishes a culture in which it can thrive,” says Ware. When the Innocence Project of Texas is re-investigating a case, buy-in from the DA is key. “There’s so much they can do to do facilitate that process,” he says.
“And there’s so much they can do to delay and block that process.”