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Actual Innocence & Conviction Integrity Units

Cynthia R. Garza

Conviction Integrity Unit, Chief, Special Fields Bureau, Chief, Dallas County District Attorney’s Office

​ISSUE 13

SUMMER 2023

CRIMINAL LAW

The concept of a Conviction Integrity Unit (CIU), sometimes referred to as a Conviction Review Unit (CRU), gained popularity not only in Texas, but around the nation after the creation of the Dallas County CIU in 2007.¹ At that time no one knew exactly what a CIU was, what function it should have, or why any District or State Attorney (the State) would want to create one in the first place. As systematic reform began to challenge our traditional ideals of justice, there grew not only a desire but also a need to ensure ethical, fair, and just prosecution. In turn, 96 CIUs have been created in the United States as of March 2023,² slightly double the number of units that existed five years ago.³ First Things First: What is a CIU?


Let’s begin with the basics: a CIU is a dedicated unit within a prosecutor’s office that, at its most basic model, reviews convictions involving claims of actual innocence using an established process. District and State Attorney’s Offices staff CIUs differently throughout the country, primarily due to various factors affecting individual jurisdictions, such as budget, caseload, and office size. Regardless of staffing, one thing is certain: a well-run CIU seeks to ensure an independent, comprehensive review and investigation of convictions in which it is suspected that there was a miscarriage of justice. Depending on the jurisdiction, CIUs have the additional responsibility to litigate cases, including leading the intricate process of overturning a conviction; a process necessary in the face of actual innocence or wrongful conviction evidence that questions the validity of the conviction, itself.

The Dallas County District Attorney’s Office was initially met with skepticism and criticism from both outside the office and within the Office’s ranks. In fact, many people questioned why the CIU was part of the District Attorney’s Office at all: “Isn’t that the job of an innocence project or the defense bar?” they would ask. Such questions are to be expected when the traditional role of a prosecutor is seemingly challenged, but the answers to these types of questions are multifaceted. The State is the party that not only has access to the most information, tools, and resources, but it is also the party who pursued charges against the convicted individual, in the first place. Additionally, unlike other types of attorneys, prosecutors are bound by particular laws and ethical rules to ensure the integrity of the criminal justice process. Amongst those duties is the duty “not to convict, but to see that justice is done.”

When the State undertakes a case, it is important to consider the prosecutor’s duty of justice to several affected parties. First, prosecutors owe a duty of justice to victims of crime. For many prosecutors, this duty requires acts of advocacy and empowerment. Prosecutor offices regularly guide victims through a complex and sometimes tedious criminal justice system, all while striving to hold those who harmed the victim accountable and to uphold the State’s duty to ensure that victims are afforded the rights granted to them under the law. Prosecutors also have a duty to seek justice for the community as a whole—that is, to ensure that schools, businesses, and neighborhoods remain safe and confident in the criminal justice system. Next, the State owes a duty of justice to the criminal justice system itself because prosecutors take an oath to follow the law and to ensure that convictions are obtained with full integrity and fairness.Finally, prosecutors have a duty to ensure justice for the defendant. You see, the duty to follow the law requires that prosecutors observe and respect the rights of the defendants, while exercising appropriate and measured prosecutorial discretion guided by the evidence and the highest ethical principles.When an innocent person is imprisoned, we have not fulfilled our duty of justice to any of the above-mentioned parties. What does “actual innocence” mean?


“Actual innocence” is a legal term to describe when a person is factually innocent. In other words, the person did not commit the crime for which they were convicted.¹⁰ In Texas, actual innocence cases can be presented to the court in the following two ways:

  1. The stand-alone claim of actual innocence based solely on newly discovered evidence, also known as a Herrera-type claim of actual innocence;¹¹ and

  2. The Schlup-type claim, which is a procedural claim in which the claim of innocence does not itself provide a basis for relief, rather is tied to a constitutional error.¹²

The Herrera claim requires applicants to meet a clear and convincing burden of proof which has repeatedly been described by the Texas Court of Criminal Appeals as a herculean task,¹³ whereas the Schlup claim requires applicants to meet the lower “by preponderance of the evidence” burden of proof.¹⁴

Wrongful Convictions


Additionally, over the years, several causes of wrongful convictions have been identified, including faulty eyewitness identification, false or misleading scientific evidence, prosecutorial or official misconduct, perjury, false accusations, and false confessions.¹⁵ Usually, wrongful convictions involve more than one cause. A study examining the first 325 of the Innocence Project’s DNA exonerations revealed that faulty eyewitness identification was the leading cause of those wrongful convictions, followed by misapplication of forensic scientific evidence.¹⁶ While most of Dallas County’s exonerations have followed similar trends, the Dallas County CIU has experienced exonerations involving all of the contributing causes of wrongful convictions tracked by the National Registry of Exonerations. How Does a CIU Function?


In Texas, post-conviction habeas legal proceedings challenging a conviction must be filed by either the convicted person through their attorney or pro se (i.e., on their own behalf without the legal representation of an attorney).¹⁷ The prosecutor cannot file claims on behalf of the convicted person because they represent the State—even in cases where the prosecutor agrees that someone is actually innocent. Therefore, since CIUs are part of the district or state’s attorney’s office, a CIU cannot initiate legal proceedings on behalf of a convicted person, nor can they represent the convicted person in court. CIUs can however, initiate a post-conviction review and investigation of the convicted person’s case under the appropriate circumstances. Specifically, Texas prosecutors are also able to petition the court to appoint an attorney for an unrepresented, indigent defendant in limited circumstances.¹⁸ As of March 2023, there are a total of six CIUs in Texas; they are located in Dallas, Harris, Tarrant, Bexar, Travis, and Collin counties.¹⁹ The table below gives a very brief introduction to each of the units:

County

Est.

Staffing

Types of Claims Accepted for Review

Who Can Submit a Request for Review

How To Submit a Claim

Contact Info

Dallas County ²⁰

2007

· 4 full-time attorneys²¹ · 2 full-time investigators

· 2 full-time legal assistants

​· Actual innocence

· Wrongful conviction (constitutional claims tied to actual innocence)

· New scientific evidence

· Systematic errors

​· Inmates

· Defense Bar

· Innocence projects and clinics

· Prosecutors

· Law enforcement

· Judges

· Members of the scientific community²²

​In writing (no formal application)

​Dallas County District Attorney’s Office

Conviction Integrity Unit

133 N. Riverfront Blvd., LB 19

Dallas, Texas 75207

214-653-3600

Harris County ²³

2009

· 1 full-time attorney

· 1 full-time investigator

· 1 full-time paralegal

​· Actual innocence

· Wrongful conviction

· New scientific evidence

​· Inmates

· Defense Bar

· Innocence projects and clinics

· Prosecutors

· Members of the scientific community²⁴

​In writing using case review form (found here)

​Harris County District Attorney’s Office

Conviction Integrity Division

1201 Franklin St., Floor 6

Houston, Texas 77002

713-274-6040

Bexar County ²⁵

2015

​· 3 full-time attorneys

· 1 investigator (on an as‑needed basis and shared with another division)

· 1 intern

​· Actual innocence

· Systematic errors (including ineffective assistance of counsel, time credit claims, claims related to courtroom error)

· New scientific evidence

· Wrongful convictions (constitutional claims tied to actual innocence)

· Immigration and other equitable relief matters

​· Inmates

· Family members of inmates

· Defense Bar

· Innocence projects and clinics

· Prosecutors

· Interest groups and media

​In writing using case review intake form (found here or provided via email request)

​Bexar County Criminal District Attorney’s Office Conviction Integrity Unit 101 W. Nueva St., 4th Floor

San Antonio, Texas 78205

ciu@bexar.org

Tarrant County ²⁶

2015

​· 3 full-time attorneys²⁷ · 1 full-time investigator

· 1 part-time investigator

· 1 full-time support staff

​· Actual innocence

· Systemic errors (including constitutional claims impacting actual innocence or wrongful conviction)

· New scientific evidence supporting actual innocence

· Claims should be predicated on factual matters

· Inmates (for his/her own case) · Family members of inmates · Defense attorneys · Innocence advocacy groups (projects and clinics) · Internal referrals from prosecutors · Courts · Law enforcement

​Complete a CIU Review Request (available here or by request)

​Tarrant County Criminal District Attorney's Office

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196

Attention: Conviction Integrity Unit

Travis County ²⁸

2017

​· 4 full-time attorneys²⁹ · 1 full-time investigator

· 1 full-time support staff


​· Actual innocence

· Wrongful convictions (constitutional claims tied to actual innocence)

· New scientific evidence that supports actual innocence

​· Inmates

· Defense Bar

· Innocence projects and clinics

· Prosecutors

Online (application found here)

TCDA.CIU@traviscountytx.gov Phone: 512-854-9400

Collin County

2018

​· 1 full-time attorney

​· Actual innocence

· Wrongful convictions (constitutional claims tied to actual innocence)

· New scientific evidence that supports actual innocence

​· Inmate

· Defense bar

· Innocence projects and clinics

· Prosecutors

Complete a CIU Review Request (form available upon request)

Collin County Criminal District Attorney

Conviction Integrity Unit

2100 Bloomdale Rd., Ste. 100

McKinney, TX 75093

972-548-4323

Although all units are staffed and structured differently, they share an understanding of the way actual innocence cases should be reviewed. CIUs recognize their responsibility to train attorneys, law enforcement, and other criminal justice stakeholders in an effort to protect against wrongful convictions in the future. Some CIUs have also been involved in helping to construct and support legislative changes both in Texas and around the nation for criminal justice reform in the area of wrongful convictions.


CIU Best Practices


There is no magic formula for what makes a CIU successful. The truth is there is not one single identifiable quality to ensure success because it is only when you combine several qualities that a truly successful CIU is formed. Defining “success” across the board in this context, however, can be difficult. It is important to consider various factors that can affect the optics of success, which among other things, can vary based upon applicable laws to each jurisdiction. For example, laws allowing one district attorney’s office to take certain action as it relates to innocence cases may be vastly different from the laws affecting the neighboring state’s district attorney, which may constrain that office’s discretion.


As a general matter, however, the following guidelines collected from a variety of sources are suggested best practices and may help guide the creation and evaluation of a CIU:

  1. Structure & Independence. The CIU should be an independent unit within the district attorney’s office, separate and apart from the appellate and/or post-conviction section of the office. The head of the Unit should report directly to the elected district attorney.

  2. Staffing. The head of the CIU should have a strong defense or innocence background. Although that is the suggestion, it is also recognized that well-respected, experienced prosecutors who are able to approach case reviews with a truly open and unbiased mind are also a viable option.

  3. Case Referrals. Case referrals should be from individuals claiming innocence, innocence organizations, defense attorneys, internal audits, prosecutors, and forensic science providers. If your office does not have a designated CIU, you should have a designated staff member who can document the intake of these referrals and is responsible for review of the claims.

  4. Case Selection Criteria. The CIU should develop criteria for cases that the unit will accept for review. The idea is that the CIU, should look past traditional procedural bars and use broad criteria that uses the interest of justice as the guiding principle. For example, a defendant’s guilty plea should not be the reason their case is rejected for review of wrongful conviction claims.

  5. Collaborative Approach. When reviewing wrongful conviction claims, both parties should largely abandon the traditional adversarial spirit that is commonplace in the justice system. In fact, a hallmark attribute of a well-run CIU is its collaborative approach to cases. Prosecutors and defense attorneys working CIU cases share non-privileged information—often after a confidentiality agreement is signed—in order to ensure that the investigation moves forward with all parties having access to the same information. That means, for example, that forensic testing is conducted pursuant to a joint agreement, witness interviews may be coordinated and jointly conducted, the State openly shares its files, and the defendant may also be interviewed by the CIU. This collaboration works well because the primary goal of all involved is to seek the truth.

  6. Transparency. Create, maintain and provide a public reporting of case reviews (e.g., statistics) as a way to maintain public confidence in the CIU and District Attorney’s Office as a whole, but also as a way to manage quality assurance.


General Practical Guidance


When a person believes they may have an “actual innocence” case, it is generally best to first have the claim(s) evaluated by an innocence organization and/or a qualified defense attorney. If, after evaluating the case, a CIU review is recommended or the claimant is pro se and would like to have a CIU review the case, the CIU in the jurisdiction where the conviction originated should be contacted in order to initiate the request. If the jurisdiction where the case originated does not have a CIU, an inquiry to the district attorney’s office could be made to determine whether anyone in the State’s office is specifically designated to review actual innocence matters.


Regardless of which route is taken, all criminal practitioners handling cases in Texas involving actual innocence claims may find it helpful to familiarize themselves with the following innocence cases:

  • Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012).

  • Ex parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App. 2016).

  • Ex parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018).

Each one of these cases published by the Texas Court of Criminal Appeals has an excellent discussion on actual innocence, and several other constitutional claims that are sometimes found when investigating innocence cases.


Finally, criminal practitioners handling actual innocence cases should review the Texas Code of Criminal Procedure, especially the statutes involving post-conviction writ of habeas corpus: articles 11.07, 11.072 (probation writs), and 11.073 (new scientific evidence); as well as the Texas Rules of Appellate Procedure, paying close attention to those rules applying to writs of habeas corpus. In addition, it is important to become familiar with the specific form on which the writ of habeas corpus application must be submitted; the form can be found on the Texas Court of Criminal Appeals’ website.³⁰


In Closing…


There is no greater tragedy in the criminal justice system than the conviction of an innocent person. Today, Texas prosecutors are trained to follow newer laws that have been established as a direct result of wrongful convictions, like the Michael Morton Act, which requires prosecutors to “produce and permit the inspection . . . by or on behalf of the defendant” of any material evidence.³¹ Prosecutors are trying their best to comply with the law, just as the defense bar is also trying their best to diligently represent their clients in the age of digital media evidence overload. The State Bar of Texas is looking closely at ethical complaints against all attorneys and, in the more recent years, has publicly condemned the actions of some prosecutors.³² Criminal justice reform efforts should be pursued around the country in order to establish procedures to avoid the same pitfalls that befell criminal justice stakeholders in the past. As society evolves, we must continue to promote and ensure the improvement and fairness of its criminal justice system, and all affected by it.


Helpful References:

  • The Healing Justice Project – a national nonprofit organization serving individuals who have been impacted by crime and exonerations; providing post-trial support and recovery to crime victims and survivors, exonerees, and their families. Information on resources to assist survivors, crime victims, exonerees, and practitioners can be found at https://healingjusticeproject.org/.

  • The National Registry of Exonerations – a Project of the Newkirk Center for Science & Society at University of California Irvine, the University of Michigan Law School, and Michigan State University College of Law. The Registry provides detailed information about every known exoneration in the United States since 1989. Information about causes of wrongful convictions and resources for practitioners can be found at http://www.law.umich.edu/special/exoneration/Pages/about.aspx.

  • The Innocence Project – founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law, the Innocence Project exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice. Information about causes of wrongful convictions and resources for practitioners can be found at https://www.innocenceproject.org/.

  • Innocence Project of Texas – provides free investigative and legal services to indigent prisoners serving time for crimes they did not commit. Information about exonerations in Texas and reform initiatives can be found at https://innocencetexas.org/.

  • The Innocence Network – an affiliation of organizations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted, working to redress the causes of wrongful convictions, and supporting the exonerated after they are freed. Visit https://innocencenetwork.org/ for more information.

 

Suggested Citation: Cynthia R. Garza, Actual Innocence & Conviction Integrity Units, ACCESSIBLE LAW, Summer 2023, at 32.

Actual Innocence & CIUs [Article]
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Sources: [1] Barry Scheck, Conviction Integrity Units Revisited, 14 Ohio St. J. Crim. L. 705, 705 (2017).

[2] Conviction Integrity Units, The Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Conviction-Integrity-Units.aspx (last visited Apr. 20, 2023).

[3] See National Registry of Exonerations, Exonerations in 2018, at 2 (Apr. 9, 2019), https://www.law.umich.edu/special/exoneration/Documents/Exonerations%20in%202018.pdf.

[4] John Hollway, Quattrone Ctr. for the Fair Admin. of Justice Univ. of Pa. L. School, Conviction Review Units: A National Perspective 2 (Apr. 2016), https://www.law.upenn.edu/live/files/5522-cru-final.

[5] Tex. Code Crim. Proc. art. 2.01; see also Tex. Disciplinary Rules Prof’l Conduct R. 3.09, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, §9).

[6] See Tex. Code Crim. Proc. art. 56A.051; see also Tex. Const. art. I, § 30.

[7] Kristine Hamann & Laura Greenberg-Chao, The Prosecutor’s Evolving Role: Seeking Justice Through Community Partnerships and Innovation, Prosecutor’s Ctr. for Excellence (May 2016), https://pceinc.org/wp-content/uploads/2019/11/20160606-The-Prosecutors-Evolving-Role-Seeking-Justice-Through-Community-Partnerships-and-Innovation-PCE-Hamann-Greenberg-Chao.pdf; see also Mission Statement, Dallas Cty., https://www.dallascounty.org/government/district-attorney/mission.php (last visited Apr. 20, 2023).

[8] Tex. Gov’t Code Ann §§ 42.002(a), 42.003; see State of Texas, Office of the Secretary of State, Oath of Office, https://www.sos.state.tx.us/statdoc/forms/2204.pdf; see also Tex. Disciplinary Rules Prof’l Conduct R. 3.09; Tex. Code Crim. Proc. art. 2.01.

[9] Tex. Disciplinary Rules Prof’l Conduct R. 3.09.

[10] Valena Beety, Karen Newirth & Karen Thompson, Miscarriages of Justice: Litigating Beyond Factual Innocence 10 (2023), https://academyforjustice.asu.edu/wp-content/uploads/2023/01/20230123-A4J-MoJ-Report-digital.pdf.

[11] See Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).

[12] See Schlup v. Delo, 513 U.S. 298 (1995).

[13] Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006).

[14] Schlup, 513 U.S. at 327.

[15] Percentage of Exonerations By Contributing Factor tbl., Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last updated May 15, 2023).

[16] Emily West & Vanessa Meterko, Innocence Project: DNA Exonerations, 1989-2014: Review of Data and Findings from the First 25 Years, 79 Alb. L. Rev. 717, 735 (2016).

[17] Tex. Code Crim. Proc. arts 11.07, 11.072, and 11.073. This document is not intended to address post-conviction matters in capital murder cases where the death penalty was imposed.

[18] Id. art. 11.074.

[19] Conviction Integrity Units, supra note 2.

[21] One attorney, one investigator, and one legal assistant are grant-funded through December 2025.

[22] For example, Texas Forensic Science Commission or local labs, etc.

[24] For example, Texas Forensic Science Commission or local labs, etc.

[27] One attorney is dedicated to handling disclosures and discovery issues.

[29] One attorney is grant-funded through 2024.

[31] Tex. Code Crim. Proc. art. 39.14(a).

[32] See, e.g., Charles J. Sebesta, Jr. v. Comm’n for Lawyer Discipline, No. 56406 (Texas Bd. Disp. App. Feb 8, 2016) (affirming disbarment); Schulz v. Comm’n for Lawyer Discipline, 2015 WL 9855916 (Texas Bd. Disp. App. Dec. 17, 2015) (fully probated suspension);Order of the Supreme Court of Texas, Misc. Docket No. 13-9155, Nov. 19, 2013 (accepting resignation of State Bar of Texas law license of Ken Anderson in lieu of discipline); see also Alexa Ura, Anderson to Serve 9 Days in Jail, Give Up Law License as Part of Deal, The Tex. Tribune, Nov. 8, 2013, https://www.texastribune.org/2013/11/08/ken-anderson-serve-jail-time-give-law-license/; Order of the Supreme Court of Texas, Misc. Docket No. 21-9040, April 13, 2021 (accepting resignation of State Bar of Texas law license of Richard E. Jackson in lieu of discipline); Marie Fazio, Ex-Prosecutor Who Withheld Evidence in Murder Case Gives Up Law License, N.Y. Times, May 18, 2021, https://www.nytimes.com/2021/05/18/us/rick-jackson-disbarred-texas.html.

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