Last week we saw at the state level a shining example of how even a liberal attorney general is not sufficient to produce proper oversight. In the Orange County jailhouse informant scandal, a case that a conservative judge referred to as “outrageous governmental misconduct,” AG Xavier Becerra did not even issue so much as a slap on the wrist following a four-year investigation.
The news is not much better at home. In 2014, riding a wave of reformist innovations in local prosecutor offices, DAs created their own Conviction Integrity Units. As the Cook County (Illinois) website explains: “The Conviction Integrity Unit (the ‘CIU’) investigates claims of actual innocence, to determine whether new evidence gives rise to a substantial probability that the convicted defendant was not the person who committed the offense of conviction.”
As we have seen across the country, CIUs can be hit or miss – either freeing large numbers of people that have been wrongly convicted or just window dressing, doing little to solve the systemic problems in the locale.
From the start, we expected that Yolo County’s would be the latter category.
This past weekend, I was reading a new book from Kyle Swenson which covered the exoneration of three men convicted of murder in 1975 and exonerated in 2015 – nearly 40 years later. At the time, that was the longest wrongful incarceration in the nation resulting in exoneration.
Mr. Swenson writes of Conviction Integrity Units: “Although CIUs are popular, they can also be an empty gesture—ultimately ineffective window dressing. Of the fifteen CIUs open in 2014, only seven had produced exonerations. The other eight had yet to overturn convictions, including Cuyahoga County’s unit.”
Interestingly enough, that crop of CIUs from 2014 includes Yolo County. In 2014, they opened their conviction integrity unit.
At the time, DA Jeff Reisig stated in a press release: “A prosecutor’s role is to ensure that our system achieves justice which includes not only convicting the guilty but also guaranteeing the protection of the innocent. The creation of this Unit helps us to obtain both of these goals.”
As the office explains, “This unit will be headed by an Assistant Chief Deputy District Attorney to review all claims of factual innocence made by persons who have been convicted of crimes.“
The release goes on to explain how the process will work: “The Unit will conduct an initial inquiry to determine whether further review or investigation is necessary. The Unit will review transcripts, evaluate forensic evidence in light of new scientific knowledge, conduct additional forensic tests, interview witnesses, or conduct any other investigation deemed necessary. This Conviction Integrity process supplements the appellate process already available to defendants and is designed to avoid the possibility of an innocent person being punished for a crime they did not commit.”
How effective has it been? By last year, when we last requested records, they had only looked at six cases. None even got a second level of review. My friend who was doing research recently on CIUs told me yesterday that Yolo County’s CIU is one of the “fake” ones.
Compare that to the Conviction Integrity Units in Brooklyn and Houston. In 2015 alone, the two combined to exonerate 58 people. That is 58 out of the 149 exonerations in the country at just two units.
Mark Godsey, director of the Ohio Innocence Project which coincidentally helped to exonerate the individuals in Kyle Swenson’s book, writes in his own book:
“The CIUs in Brooklyn and Houston are, of course, a welcome and much-needed addition to the innocence movement. Combined with independent innocence organizations like my Ohio Innocence Project, they provide a blueprint for how we can eventually conquer the problem of wrongful convictions.
“But the failings of CIUs in other jurisdictions show that success in this area is hard to attain. Many of the other CIUs thus far appear to pay little more than lip service to the problem of wrongful convictions, because the prosecutors in charge seem understandably unable to move past their own psychological barriers to adequately reexamine old cases with a fresh eye.”
Yolo County’s CIU has not been one of the effective ones. And that’s too bad because a good CIU could have freed some of the likely wrongfully convicted folks in Yolo County.
The Vanguard has identified at least 14 probable wrongful conviction cases in the past 13 years. Fourteen.
Don’t believe me? Well we are going to find out soon enough – perhaps even this week.
This week two of them will get hearings in Yolo County. On Wednesday, James Olague will have a hearing under the new 1437 law barring felony murder as he tries to overturn his murder conviction as part of three co-defendants found guilty by a Yolo County jury of first degree murder and sentenced to life.
As we have been reporting, Ajay Dev is moving closer to an evidentiary hearing in his 2009 conviction.
In addition to those two cases, Ernesto Arellano also filed a motion under 1437 last week – although, based on the verdict in his case, he might not qualify, the public defender tells us.
Finally, while nothing has been set, Greg Zielesch, convicted in 2008 of conspiracy and murder related to the shooting of CHP Officer Andy Stevens, has also filed under 1437 to vacate at least the murder conviction.
Those are four of the probable wrongful convictions in Yolo County – people that could be helped by an effective CIU that objectively weighs claims of innocence and identifies problems in the prosecution’s case.
In the case of Ajay Dev, there is significant new evidence of innocence. In the case in Cleveland covered in Mr. Swenson’s book, when the key witness recanted, the DA listening to the testimony decided to drop the opposition to a new trial and, once granted, dismissed the charges, allowing the men to be released after nearly 40 years.
But as we saw in the case of the three men convicted in Cleveland, justice moves slowly. These men lost decades. The four men we identify above have each been in prison for over a decade for crimes we do not believe they committed.
But the system is ill-equipped to deal with them properly.
As Mr. Swenson writes: “The American criminal justice system isn’t wired for claims of innocence.”
The most effective way to fix that is for the local prosecutor to find cases like these and do their own research to determine if they put the wrong people in prison. Or, in the case of Ajay Dev, put a man in prison for a crime that never happened.
—David M. Greenwald reporting