The National Registry of Exonerations reported on February 4, 2014 that last year was a “record-breaking year for exonerations (87) in the United States.”


It is hard to say whether that is a good thing or a bad thing.


With 13 exonerations, Texas led the nation followed by Illinois with 9 and New York with 8. Twenty-five states recorded 86 exonerations while the Federal system recorded 1.


In a February article by Edgar Walters in the Texas Tribune, Shannon Edwards, director of governmental relations for the Texas District and County Attorneys Association, chose to put a positive spin on Texas’s front-running position in the exoneration arena. He pointed out that approximately one million cases are processed annually through the state’s criminal justice system. He said the 13 exonerations represent a “pretty small number” of the total number of cases processed. He added that while “even one case is too many,” the system strives for “perfection.”


That’s debatable. Two of the state’s exonerations involved prosecutorial misconduct. This past year the Texas Legislature was forced to pass a law which extended the period of time in which a wrongfully convicted person can pursue a grievance against a prosecutor responsible for misconduct that led to the conviction. One of those prosecutorial misconduct cases involved a defendant convicted in 1999 for a triple murder who saw his conviction and life sentence reversed last year by the Texas Court of Criminal Appeals because the prosecutor suppressed favorable evidence and knowingly presented false evidence.


Of the one million criminal cases processed each year in the Texas justice system that result in a finding of guilt, approximately 96 percent of those cases are resolved through “plea bargains.”  There are undoubtedly a significant number of innocent defendants who accept plea bargains after conducting a personal risk assessment.  These are personal decisions defendants make every day to avoid cost of legal services and risk of incarceration.  However, “exonerations” typically do not happen unless a defendant elects to stand trial and a trial record is created. Viewed in this context, the 13 exonerations—especially the two involving prosecutorial misconduct—do not seem as inconsequential as Mr. Edmonds would have us believe.  They are certainly not insignificant to those wrongfully convicted individuals who have been the victims of law enforcement zeal, some who have spent decades behind prison bars.


One can certainly put a negative spin on the latest exonerations as well, as did Professor Samuel Gross, co-author of the report. The editor of the Registry said the exonerations represent only “a tip of the iceberg” and there are “many false convictions we don’t know about.” According to the U.S. Bureau of Justice Statistics, there were 1,571,013 persons incarcerated in U.S. prisons at the end of 2012. Reliable studies place the number of innocent people in the prison system at anywhere from 1 to 5 percent. That means there could be anywhere from 15,000 to nearly 80,000 wrongfully convicted people in the nation’s prison system. Against this statistical backdrop, the 87 exonerations is analogous to using a tablespoon to dip water out of the Titanic.


The Registry’s report, Exonerations in 2013, nonetheless disclosed some interesting information about the workings of the nation’s justice system:


• The number of DNA exonerations continued its decade-old decline—23 in 2005, to 20 in 2012,to 18 in 2013. • The number of non-DNA exonerations rose sharply during the same period—34 in 2005, to 59 in 2012, to 69 in 2013. • Of the 87 exonerations in 2013, almost one-third of them were in cases in which no crime was committed at all; 17 percent occurred in cases in which the defendants were convicted after pleading guilty. • The vast majority of exonerations each year occur in homicide and sexual assaults cases; in 2013, there were 40 murder exonerations (including one under the death sentence) and 18 sex offense exonerations. • 38 of the 2013 exonerations came about through the initiative, or with the cooperation of, law enforcement.


The report also pointed to another trend: “A second common theme is resources and attention. Exoneration stories often note with approval that the defendant always protested his innocence. On the other hand, innocent defendants who plead guilty have a much harder time getting attention and help from anybody—friends and relatives, the media, innocence projects, prosecutors, police, courts. One reason is that those who plead guilty get lesser sentences, and scarce resources are allocated first to those who might be executed or spend all or most of their lives in prison. That’s one reason why the great majority of known exonerations are for murder and rape, the most serious common crimes of violence with the harshest sentences.”


It should be noted that Mr. Edmonds sounded the same theme to the Tribune. In response to the report’s conclusion that many of the exonerations involved faulty forensics, such as used in drug testing, the TDCA spokesman said that “half of these cases could have been avoided if we’d just had the resources to do testing on these substances up front.”

And this brings us to yet another disturbing facet of the report which found that four of Texas’s 13 exonerations were the result of an “inadequate legal defense.” Most of these cases involved appointed counsel who, as Mr. Edmonds noted, did not have the “resources” available to mount an effective defense.


Responding to the aspect of the report, State Sen. Rodney Ellis, D-Houston, made this poignant observation to the Tribune: “Unfortunately, in everyday Texas, quality of justice is too often contingent on your wealth and the attorney you can afford.”

Rebecca Bernhardt agreed. The policy director of the Texas Defender Service told the Tribune: “It’s not so much about good lawyers versus bad lawyers. Every time the court doesn’t give you the resources you need for investigations, you lose the tools necessary to prove that your client either wasn’t guilty or deserves mercy.”


Mr. Edmonds seem to agree, saying: “To ensure that the system works as it’s intended, both sides have to have good advocates to investigate the cases.”


Mr. Edmonds’s words sound good, but in practice many district attorneys across the state vigorously oppose efforts by appointed counsel to secure access to evidence and other tools necessary to properly investigate their client’s case.

Regardless of the reason, six of 13 of the Texas exonerations involved prosecutorial misconduct and inadequate defense counsel. That speaks to the failure, not the perfection of the state’s justice system.