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Dallas leads the way in addressing wrongful convictions

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Posted at 2:36 PM, Dec 22, 2014
and last updated 2014-12-22 14:45:53-05

In a red brick office building on the edge of Dallas, Lt. David Pughes braced for the ugly discussion he expected when he stepped inside the room full of detectives down the hall.

It was spring 2009 and Pughes, a 19-year Dallas patrol officer and investigator, had become a spear point in the city’s battle to reverse a humiliating pattern of wrongful convictions. He was about to lay out a “better” way of doing business for officers, and many were resistant if not downright hostile to it. “It was an experiment for me in radical change,” said Pughes, who described himself as “very much in the hot seat.”

Over the previous three years, 14 men convicted in Dallas courts had been cleared, their time behind bars amounting to hundreds of years altogether. Dallas ranked first in the nation in DNA exonerations. Across the country, DNA evidence was forcing a fresh look at hundreds of cases from San Diego to Baltimore, Detroit to Tampa and putting law enforcement errors under a glaring public spotlight.

Recurring mistakes came into focus. In many, eyewitness testimony had been flat wrong. Official misconduct was often to blame -- police had coerced confessions, prosecutors had failed to disclose evidence favorable to defendants.

This year could mark a high point in the number of exonerations obtained with the initiative or cooperation of law enforcement, continuing a sharp upward trend since 2012, says Sam Gross, editor of the University of Michigan’s National Registry of Exonerations. Among last year’s record 91 exonerations nationwide more than a third fit that category compared to only about 20 percent that relied on newly tested DNA.

Yet in state after state, the culture has been slow to change.  With a tradition of ruthless prosecutions, Dallas could have been among the least likely to reverse course. Instead, it paved the way for reforms in other cities and today is considered a model for what can and should be done to prevent wrongful convictions.

“Dallas served a momentum-building function,” said Jim Doyle, a  former fellow with the National Institute of Justice who has written widely on wrongful convictions. “It indicated that this was something that could be a question not of ACLU ideology, but of law enforcement workmanship."

“Trying to Get it Right”

When David Kunkle took over as Dallas police chief in June 2004 the city was saddled with the country’s highest big-city crime rate and its police department was reeling from a scandal over a bogus drug bust. In the previous 18 months, three men prosecuted and convicted by Dallas had been cleared and freed. Kunkle, a cerebral and reserved marathon runner, had been a suburban police chief. Although the 53-year-old’s resume included 10 years in Dallas’ lower police ranks, his style was distinctive. For a recent meeting, he arrived on a pistachio Vespa wearing Oxfords tied with purple laces. To many on the force, he didn’t quite cut the image of a big city chief.

David Kunkle on his pistachio-colored Vespa.

Kunkle surprised them. In short order, he banned neck holds, tightened guidelines for Taser use and put limits on any officer involved in a shooting -- decisions that made him intensely unpopular with the force. But within 18 months, crime rates were down in every category and murders had dropped nearly 20 percent. Meantime, wrongful convictions in old cases continued to surface. “I don’t think I had an appreciation for how many there were and what departments needed to do about it,” Kunkle now says. “It just became a more compelling issue.” 

In 2005, he ordered videotaping of all interrogations of murder suspects, tamping down potential coercion. The next year, he pushed for research into eyewitness lineups, one of the first cities to pursue such a review. This wasn’t atonement, Kunkle says. “I think we were just trying to get it right because that’s what we’re supposed to do.”

“What Do We Have to Hide?”

In 2006, he got an unexpected ally. The same drug scandal fallout that had swept in a reform-minded Dallas police chief helped propel a relatively untested defense lawyer into the District Attorney’s Office.

As the county’s first African-American DA, 38-year-old Craig Watkins brought a different perspective to a department known for its aggressive prosecutions.

“Most DA’s talk about conviction rates and being tough on crime and Craig Watkins campaigned differently,” Kunkle said. “He brought up the mistakes of the past.” While the men were of like minds, they actually went about their reforms independent of each other.

Tall and broad shouldered, Watkins is physically imposing but soft spoken. He knows what it is to be an innocent young black man trailed by police through the mall or stopped for no reason while driving an expensive car.

Watkins quickly made good on a campaign pledge. He opened all prosecution files to defense lawyers, a highly unusual step. If mistakes were exposed, he said, it was all for the good.

“What do we have to hide?” he said in a recent interview. “If a person committed a crime, then you can prove it. And if they didn’t, you don’t even need to try to prove it. It’s as simple as that.”

Watkins’ top assistant, Terri Moore,  had suggested Watkins create a team to review old convictions. Knowing the bridge-building work ahead of him, he hesitated. It could infuriate both police and prosecutors loath to being second-guessed.

Moore convinced him it was worth the political risk.

Craig Watkins in his Dallas office.

”They didn’t vote for you anyway,” Moore recalls telling him. “You’re a defense attorney. You’re a black guy. A Democrat. Crap, you got all these strikes against you. So let’s go look at these things.”

The Conviction Integrity Unit he began a few months later became a hub for defense attorneys and law students poring over case files for missed clues and untested DNA evidence. To date, they have been a leading force in 23 exonerations, helping blaze a trail. Today 17 cities have similar teams.

“This is the One You Saw, Lady”

Dallas authorities had already sprinted ahead of nearly every other U.S. city in exposing wrongful convictions by the fall of 2008. But more changes were needed, and it meant tough medicine for the city’s police. As attempts at reform got shot down in other cities, Dallas’s police leadership muscled through.

On the sixth floor of police headquarters, three-ring binders and accordion-style file folders filled Lt. David Pughes’ office, and an extra table was carted in for the research he was amassing.

At Kunkle’s request, Pughes had spent months investigating ways to improve witness identification, which was at fault in three-quarters of the nation’s wrongful convictions brought to light by DNA reviews, according to studies.

Around the country, police lineups had evolved. Witnesses rarely stood behind a one-way window to inspect a row of suspects like on TV. Instead, police showed photos.

This was the method Leonard “Cowboy” Schilling described for Scripps last July at his Mule Barn Law Center in Fort Worth. He never worked for the Dallas police department, but the 61-year-old had seen a lot in 16 years as a Fort Worth cop and 24 more as a north Texas criminal defense lawyer. He knew how witnesses could be manipulated.

Leanord Schilling pictured at the Mule Barn Law Center in Fort Worth, Texas.

On a small pad of paper, Schilling drew six squares replicating the layout police departments typically use to display photo lineups to witnesses, then planted a finger conspicuously over one “mug shot.” “See anybody that looks familiar?” he asked peering knowingly over his glasses. This is the way he’d seen it done, he said, and done it himself in his younger days.

“I may have made some suggestive comments that ‘this is the one you saw, lady. Let me tell you about this one.’”

He made no apologies -- he was sure the suspects were guilty. But, he argued, it’s wrong for other officers to bend the rules. “I did what I did at the time, and it was right. But that’s just that particular time,” he said.

Reformers now argue that investigators should have no role in displaying pictures of possible suspects to witnesses. Even well-meaning case officers might unintentionally sway a witness in subtle ways.

In Dallas, Pughes’ new plan for witness identification mandated everything from how to choose photos, the questions to ask and, most importantly, who would be in the room with the witness. And it wouldn’t be the case officers. 

For the rank and file in Dallas and many other cities where such changes were proposed, it smacked of distrust.

Pughes knew he would face belligerence when he walked into a training session in the spring of 2009. The officers were eager to defend their integrity and worried that his system would make it harder to get evidence.

As Pughes fired up his Powerpoint, Det. Steve L’Huillier interrupted from the front row. With nearly 30 years on the force, L’Huillier was insulted. “How dare you accuse us all of wrongdoing?” L’Huillier said. “If we had a few cases that resulted in wrongful convictions, that’s a tragedy.” Those were rare exceptions, he argued.

But police had no experience from an eyewitness perspective, Pughes told them. “Once you are able to sit in their chair, walk in their shoes for a minute, the officers came to the realization that picking someone out of a lineup is much more difficult than what you’d think on the outside looking in,” he said.

State lawmakers saw wisdom in the new system too and proposed witness identification reform across Texas. A vigorous lobbying campaign by the Houston Police Union opposed it and the bill failed. But a similar measure succeeded two years later.

A survey last year by the Police Executive Research Forum found that more than two-thirds of police departments in the U.S. still don’t take the most basic step to reduce errors in witness identification: requiring a person unfamiliar with the case to show the lineup. Brandon Garrett, a University of Virginia law professor and expert on wrongful convictions, has watched the opposition succeed time and again. “It’s kind of remarkable how long it takes to make changes that really help the police,” he said.

Kunkle retired in 2010, and this fall Watkins lost a contentious bid for reelection. But their work left an indelible mark, including on Dallas homicide detective Scott Sayers, who had opposed the ID changes. Sayers, who joined the force in 1995, was convinced that killers would get away with their crimes. “In the end, I think that was false,” Sayers says now, adding that the system also better protects officers from court challenges.

Which doesn’t mean the going will be any less contentious next time. “Anything you try to change,” he says, “there’s going to be backlash.”

Scripps National Reporter Isaac Wolf can be reached at wolfi@shns.com