By Jeffrey Deskovic
“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
Some innocence commissions study cases in which defendants were exonerated to root out the variables that caused a miscarriage of justice. Others study wrongful conviction scholarly literature.
In contrast, an actual innocence commission has the power to determine when a defendant is innocent but wrongfully convicted, and right the wrong.
The average time an actually innocent man later exonerated by DNA evidence spends in prison is thirteen years. Typically, these men exhausted their appeals years ago. An actual innocence commission can provide a forum to investigate and correct wrongful convictions outside the appeals and pardons process. Appeals are often denied based on procedural technicalities, and pardons are often denied in a highly charged political climate.
North Carolina enacted the nation’s first and only actual Innocence Commission. It is now being studied by officials in other states, defender organizations and wrongful 
conviction activists.
The commission has eight members: a superior court judge; a prosecutor; a victim’s advocate; defense attorney; a lay member of the public; a sheriff currently in office; and two members of any vocation selected at the sole discretion of North Carolina’s Chief Justice. Members serve three-year terms.
The commission employs a staff comprised of an executive director, investigator, case coordinator, and three attorneys. Commission proceedings are confidential and exempt from freedom of information laws, unless the commission determines it has sufficient evidence of actual innocence to merit a hearing. After that, its records become public
Typically, defendants who claim they were wrongfully convicted initiate review by the commission, although anyone may refer a case. Cases involving dead defendants are not considered.
The commission can screen and reject a case at its discretion. Defendants must sign an agreement waiving procedural safeguards and privileges, and agree to fully cooperate with the commission and its staff. If a defendant breaches his agreement, the commission can close its investigation at any time.
The staff review cases and report their work to the commissioners. They report their investigations neutrally without taking a position on the defendant’s guilt or innocence. Evidence previously presented in court is not considered. Commission members function as jurors, and decide whether sufficient evidence of actual innocence exists. If it does, the commission then refers the case for judicial review.
Commissioners need not be unanimous to refer a case to the court; a simple majority of five out of eight is sufficient for cases that went to verdict. However, in cases where the defendant pled guilty, all eight commissioners must vote for judicial review.
Referred cases are heard by a three-judge panel appointed by the Chief Justice of the North Carolina Supreme Court. The panel must conduct an evidentiary hearing, and panel judges must not have any prior connection to the case under review. Both prosecutor and defense attorney are present and participate in the hearing. The underlying criminal is not tried. Instead, the defendant’s claim of actual innocence is tried.
Victims are notified and may present their positions to the commission. They may also attend hearings unless the panel determines their presence would be disruptive.
The commission has subpoena power to compel the presence of witnesses. It also prescribes its own rules of procedure. Criminal disclosure statutes apply to panel hearings.
To overturn a conviction, all three judges must rule the defendant was proven innocent by clear and convincing evidence, a standard higher than the preponderance standard used in civil cases, but lower than the reasonable doubt standard in criminal cases. The panel’s decision may not be appealed.
Priority is given to cases for defendants not locked up for other crimes. If exonerated, these defendants are immediately released.
Greg Williams was wrongfully convicted of murder and served seventeen years in a North Carolina prison. In February 2010, he became the first person exonerated by the new commission.
Actual innocence commissions are urgently needed. Appeals and other post-conviction remedies are insufficient to correct wrongful convictions in all cases. Trial and appellate judges who entertain post-conviction motions frequently issue rubber stamp dismissals and regard themselves as an extension of law enforcement tasked to protect convictions at all costs.
Gubernatorial pardons are given infrequently. The merits of an individual case are often overshadowed by politics and public sentiment, especially in high profile cases.
Other states should adopt actual innocence commissions, but not necessarily follow the North Carolina model which has several flaws. Having a prosecutor, judge, victim’s advocate, and sheriff on an eight-person commission weights it too heavily in favor of law enforcement, especially given the likelihood that lay members will follow the lead of authority figures. A commission so weighted makes it unlikely an actually innocent defendant can muster five out of eight panel votes in all but the most egregious cases.
Requiring all eight votes in cases where the defendant pled guilty makes no sense. Actual innocence should rise or fall on the evidence, regardless of plea or verdict. For defendants exonerated by DNA evidence, it makes no sense a 5-3 vote will get that defendant who went to trial and lost a hearing before the judicial panel, but not the defendant who pled guilty. There are many reasons why an innocent man might plead guilty. These include mental frailty; poor defense counsel; fear of a longer sentence after trial; coercion and threats to family members; etc.
Limiting evidence of actual innocence to things never presented to a court also makes no sense. A commission is much more likely to review that evidence more searchingly than a busy trial judge. To determine probable innocence, all evidence should be considered. Innocence commissions need to correct wrongful convictions—anything less is unfair and impractical.
The commission should have the power to grant final relief. It is costly and inefficient to refer the matter back to a three-judge court. Judges draw their salaries from the state, just like prosecutors, and too often see themselves as an extension of law enforcement—which generated the wrongful conviction at issue. Additionally, if judges were truly inclined to catch and correct wrongful convictions, there would be no need for an innocence commission in the first place.
So far, the North Carolina commission has received 756 cases, and referred only three for judicial review. This is a damning statistic, considering the evidence reviewed is of the defendant’s actual innocence. It is hard to believe so few cases merit correction.
New York and other states should enact laws creating actual innocence commissions. I believe these commissions would catch and remedy wrongful convictions that otherwise go uncorrected, leaving the innocent languishing in prison for crimes they did not commit.
Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University. Jeff is now a practicing attorney.
