According to an article this week in the Washington Post, there are now 49 conviction review units in DA offices across the US – most of those started in the last five years.
The Washington Post on Tuesday chronicles Terrance Lewis of Philadelphia, who spent 12 years in prison despite the fact that a federal judge held an extensive hearing and in 2010 wrote that “the court believes that Petitioner is innocent…it is more likely than not that no reasonable juror would have convicted Petitioner.”
But that judge rejected Mr. Lewis’ appeal “on procedural grounds.”
Things changed in 2018 when progressive DA Larry Krasner took over the Philadelphia DA’s office and launched its Conviction Integrity Unit.
The Post, citing data from the National Registry of Exonerations, notes that CIUs have exonerated 344 people through 2018.
“You take an oath to seek justice,” Mr. Krasner said. “That means innocent people go home. It also means, if you have an innocent person in jail, the guilty one got away.”
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.”
But CIUs are hit or miss.
Kyle Swenson, who chronicled several wrongful convictions in Cuyahoga County in Ohio, wrote in his book: “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.”
Mark Godsey, director of the Ohio Innocence Project, noted that the Conviction Review Unit in Brooklyn exonerated 20 people in its first two years of operation. In Houston, Texas, “Prosecutors there freed forty-two inmates on grounds of innocence in 2015 alone. No law school innocence organization, including my own, can come close to matching those numbers.”
Mr. Godsey writes, “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 under DA Jeff Reisig illustrates the problem with Conviction Integrity Units when the DAs don’t take it seriously. Our most recent records request shows that Yolo County looked at only six cases and none even got a second level of review.
That is despite the fact that the Vanguard, in its ten years of running the court watch in Yolo County, has identified 14 probable wrongful conviction cases.
The most notable of those is the 2009 conviction of Ajay Dev, who was convicted of 76 counts of sexual assault and rape on his adopted daughter and sentenced to 378 years in prison.
That case is now back in Yolo County with an evidentiary hearing for Mr. Dev’s petition for habeas corpus. Another hearing may be ready for December 13.
But despite strong newly discovered evidence of innocence in that case, including an enhanced audio recording of the pretext phone call and six eyewitness – half of whom have already testified that the alleged victim admitted in 2004 and 2005 to fabricated the charges – the DA’s office is attempting to fight like mad to keep Mr. Dev in prison.
In the case of James Olague and Ernesto Arellano, who along with Oscar Cervantes were likely wrongly convicted of a double homicide in Woodland on October 31, 2002, they are potentially eligible for re-sentencing under SB 1437.
However, Yolo County, unlike other counties, is contesting the constitutionality of that matter. The next hearing there is reset for November 20 and if Judge Paul Richardson rules that SB 1437 is constitutional, then the case can proceed to determine whether the particulars of the case fit the criteria for relief under the law that took effect on January 1.
That is not exactly an exoneration, but at least two of those men could end up freed under the new law.
The new law may also impact the 2006 case of Greg Zielesch. Mr. Zielesch was convicted of felony murder and conspiracy to commit murder and sentenced to 57 to life for what was purported to be his role in the shooting death of Highway Patrol Officer Andy Stevens.
According to the prosecution in that case, Mr. Zielesch conspired with Brendt Volarvich to kill Doug Shamberger. When Mr. Volarvich and Becky Pina were in their car they were pulled over by Officer Stevens, upon whom Mr. Volarvich opened fired and killed the officer.
Mr. Volarvich received the death penalty. Meanwhile Mr. Zielesch was sentenced for his part in the killing.
However, the Vanguard over the last ten years has uncovered witnesses and evidence that Mr. Zielesch had nothing to do with it. Mr. Shamberger himself has said that the two men had no beef. Mr. Volarvich wrote the Vanguard a letter affirming that there was never a conspiracy. And another eyewitness saw Ms. Pina steal the gun in question from Mr. Zielesch’s bathroom while Mr. Volarvich admits to taking the weapon himself.
Under 1437, the felony murder could be vacated but that would leave in place the conspiracy – although the reduction of the sentence could make Mr. Zielesch eligible for parole.
There is strong evidence in these five convictions that innocent men have been convicted – and yet, the conviction integrity unit has failed to properly assess the evidence and the DA’s office continues to fight to preserve these tainted convictions.
—David M. Greenwald reporting