Factors Contributing to Wrongful Convictions and Unjust Imprisonment

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


In a March 16, 2009 article (“Cold Shoulder from Lubbock Officials in Cole Case”), we wrote extensively about the tragic wrongful conviction of Timothy Cole. A military veteran and college student, this son of a school teacher and Bell Helicopter manager was convicted in 1986 for the December 1985 rape of a Texas Tech student in Lubbock, Texas. Despite vigorous protestations of innocence from Cole and his family, Cole was convicted and sentenced to 25 years in prison where he died fourteen years later.


In February, state district judge Charles Baird indicated from the bench that Cole had been wrongfully convicted after DNA evidence established his innocence and pointed the finger of guilt at another convicted rapist already housed in the Texas prison system for several other Lubbock rapes. On April 7, 2009, Judge Baird made his February finding official and formally ruled that Cole had been wrongfully convicted. That ruling made Timothy Cole the first person in Texas history to be exonerated posthumously by DNA evidence.


Cole’s family recently met with Texas Gov. Rick Perry to request a posthumous pardon. All indications are that the governor will honor the request.


“When we started this back on September 26, 1986, when Tim was convicted, we knew this would not be a sprint race,” Cory Session, Timothy’s brother, recently told AP writer Jeff Carlton. “It was going to be a marathon. Here we are a quarter of a century later.”

The Timothy Cole case is the tip of an iceberg in the state’s terribly flawed criminal justice system. Texas has wrongfully convicted more people than any other state in the country. The number as of this posting is 39. The Justice Project, in a report titled “Convicting the Innocent: Texas Justice Derailed,” recently pointed out that these individuals served more than 500 years for crimes they did not commit. The report found that “because DNA evidence is only available in a fraction of cases, the wrongful convictions described in this report are only the beginning. There are many other wrongful convictions that have been cleared without the benefit of DNA.”


The Justice Project pointed out that while several of the 39 DNA exonerations involved intentional misconduct, “inadvertent error” was the “more common” reason for the convictions. We do not fully subscribe to the “inadvertent error” explanation for wrongful convictions. We agree more with Innocence Project of Texas’ chief counsel Jeff Blackburn, who secured Timothy Cole’s DNA exoneration: “There’s never been a serious effort at a judicial examination of what went wrong in one of these cases. Our view is this is a huge step forward [Judge Baird’s ruling], and this ought to happen in every single exoneration. We ought to treat these exonerations like we treat a plane crash. It’s a big deal. We’ve gotten so accustomed to false convictions in Texas that we just shrug our shoulders and say, ‘Oh well.’”


We take the issue a step further. We believe there should be criminal liability—or at the very least professional accountability—for law enforcement officials, prosecutors, and even criminal defense attorneys responsible for intentional “misconduct” that leads to a wrongful conviction. It is not enough to identify “what went wrong.” The Texas criminal justice system must have the moral courage and legal fortitude to prosecute, convict, and send to prison those dirty cops who fabricate evidence against criminal suspects and prosecutors who knowingly use perjured testimony—especially from “jailhouse snitches”—in order to convict them. Further, defense attorneys who fail in their duty to adequately defend their clients should be investigated and appropriately sanctioned by the State Bar of Texas.


The deliberate conviction of an innocent person is more than “misconduct.” It’s a crime! Pure and simple.

The Justice Project listed the following factors that contributed to the wrongful convictions of the 39 individuals named in its report:


Eyewitness Misidentification – the leading factor in the wrongful convictions. The majority of these misidentifications occurred in either a photo or live lineup. “Suggestive” police lineup have no place in our criminal justice system. Photo spreads and lineups should be conducted in double blind, sequential manner so as to minimize inadvertent suggestive cues and false positives.


False Forensic Testimony – the reliance upon unreliable or limited forensic methodologies such as microscopic hair comparison or serology inclusion.


Testimony of Jailhouse Snitches or Accomplices – both of whom have a tremendous incentive to lie.

False Confessions and Guilty Pleas – unrelenting custodial interrogations and the threat of harsh sentencing prompt innocent persons to confess and even plead guilty to crimes they did not commit.


Suppression of Exculpatory Evidence – the Dallas and Harris County District Attorneys Office have a long history of engaging in this type of “prosecutorial misconduct.” Dallas County has had more DNA exonerations than any other county in the nation. Both counties now have “reform minded” district attorneys who have demonstrated that they will not tolerate such misconduct by their assistants.


Ineffective Assistance of Counsel – The Houston Chronicle reported last month that procedural errors by court-appointed attorneys resulted in six men being executed in Texas without their cases being reviewed by federal courts. Lack of funding and case overload contribute to these appointed counsel errors but egregious errors by defense attorneys that result either in the untimely execution a condemned inmate or the wrongful conviction of an innocent person should be dealt with severely by the State Bar.


Investigative and Prosecutorial Tunnel Vision – locking in on a particular suspect when the evidence is circumstantial at best and staying locked on that suspect even after exculpatory evidence is discovered.


The Justice Project said the last two factors were the most difficult to identify and quantify. The Project did not attempt to measure these two factors with specific examples but rather elected to “briefly address” them as follows:


“There is no question that the most fundamental and important protection against wrongful conviction is access to a qualified defense attorney. With appropriate investigative and expert resources, defenders can meaningfully test the evidence against their clients and argue an effective line of defense. In practice, defenders frequently go without these much-needed resources and may often lack training, skills, and support—all factors that put innocent defendants at risk.


“Tunnel vision refers to a normal psychological tendency to seek information that fits a theory or belief and causes one to discount or ignore information that does not fit within that theory or belief. While investigators and prosecutors must eventually commit to the theory of who is responsible for a crime, too often this commitment to a theory premature in the investigative process, and important leads or information are either rejected or simply ignored.”


We must take issue with the Justice Project on these two factors. They are not as difficult to identify and measure as the report suggests. It is evident when ineffective assistance of counsel has contributed to a criminal conviction. It is also evident when lack of resources and expert resources set the stage for the ineffective representation. Even under the restrictive U.S. Supreme Court guidelines governing ineffective assistance of counsel claims, appellate courts have found numerous instances where counsel’s deficient performance so prejudiced the defendant that a reversal of his/her conviction was required.


With respect to the “tunnel vision” factor, the John T. Floyd Law Firm has had personal experience over the last nine months with this very issue. The firm won two acquittals at separate trials of a client charged with serious sexual offenses. The two charges never should have been presented to a jury. In fact, one juror was so offended following the first acquittal that she suggested in comments to the Houston Chronicle that the prosecutor should have been jailed. Had this client not had the funds to hire a qualified law firm in this area of the law, he could have been wrongfully convicted. The prosecutor zeroed in on this particular defendant with what could be classified as an extremely circumstantial case at best, and was so upset after the first acquittal that the prosecutor chose to go to trial on a second charge which was far more problematic than the first charge.


The bottom line comes down to this: either criminal liability or professional accountability for those whose actions, or failures to act, result in the wrongful conviction of an innocent person. Beyond these suggestions, we agree with the Justice Project’s conclusion that wrongful convictions threaten public safety. The report specifically stated:


“Considering the devastating consequences of even one of these injustices, it is clear that all reasonable steps to prevent wrongful convictions must be taken. The injustice endured by an innocent person whose most basic liberty is denied cannot be overstated. The nightmare of an unjust imprisonment ruins lives and destroys families. For the innocent, prison is a terrifying ordeal few can even imagine.


“Beyond the personal cost to those wrongfully convicted and the millions of dollars spent re-investigating cases and paying compensation, there is another price we all pay—true perpetrators go un-investigated and unpunished, putting public safety at risk. In each of these innocence cases, a criminal investigation into a serious violent crime was shut down prematurely when authorities prosecuted the wrong person.”


These is a significant cost/risk finding, especially since of the 223 persons exonerated by DNA in this country, only 91 (or 39%) of the real perpetrators were identified by the DNA evidence. That means 132 guilty individuals are probably still out there committing even more crimes. That’s a scary thought.




The complete Justice Project report can be found at:


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair