Students in the fledgling Actual Innocence Clinic at The University of Texas at Austin’s School of Law have screened more than 500 letters from Texas inmates in the past year, looking for new evidence to prove that some of them did not commit the serious crimes for which they’re imprisoned. It’s a complex and difficult job, and there are hundreds more letters waiting to be read.
Professor Robert Dawson is one of three criminal law attorneys who are supervising students in the Law School’s fledgling Actual Innocence Clinic.
“We’re all looking for a needle in a haystack—a claim of actual innocence that can be proved,” said Professor Robert Dawson during a recent interview in his office, where tall stacks of inmate letters on his desk are a constant reminder of the work ahead. He is one of three criminal law attorneys who are supervising students as they dig deep into the factual cases of inmates serving long sentences for murder, burglary and rape.
The clinic, still brand-new, hasn’t yet sprung anyone from prison. Of the hundreds of cases reviewed so far, only 10 to 15 merited investigations. But while Dawson acknowledges that the exoneration of an inmate can be a long shot, he and his colleagues, William P. Allison, director of the Criminal Defense Clinic in the Law School, and David Sheppard, a criminal defense attorney, know firsthand that it’s not impossible.
“There have been more than 20 exoneration cases in Texas between 1989 and 2002, driven primarily by the availability of DNA testing,” said Dawson, whose scholarship has led to substantial reform in the Texas criminal and juvenile laws. Of those cases, he emphasized, Allison was successful in using DNA testing and corroborating evidence to prove the innocence of two inmates—Christopher Ochoa and Carlos Lavernia—in 2000 and 2001. And Sheppard obtained freedom for a third, Richard Danzinger, in 2001.
These cases inspired Allison, Dawson and Sheppard to start in 2003 the Texas Center for Actual Innocence, a nonprofit corporation that operates the Actual Innocence Clinic. The three attorneys were confident they could find and help additional innocent people languishing in Texas’ huge prison population.
“The Texas Department of Criminal Justice has 150,000 inmates incarcerated,” said Dawson, now in his 37th year of teaching at the Law School. “If the Texas justice system is 99 percent accurate, there are 1,500 innocent people in prison. And if the system is 99.9 percent accurate, that’s still 150 innocent people in prison. That is both a reassuring and a depressing thought.”
The center’s founders were also certain that law students would want to learn how to investigate and analyze potential exoneration cases.
“We expected a lot of interest in the clinic because the work is cutting edge,” said Allison, noting that 50 students applied for 10 slots the first semester the clinic was offered.
“Actual innocence is unique because American courts have never been given the option of finding people ‘innocent.’ The only options judges and juries have are ‘guilty’ and ‘not guilty,’’’ Allison explained. “It was only in the ’90s that the courts and the legislature began to try to craft procedures, burdens of proof, pardons and compensation packages for the actually innocent.”
The first innocence project was founded in 1992 by attorney Barry Scheck at Cardozo University in New York, with whom Allison worked on a couple of exoneration cases. Today there are about 50 innocence projects nationwide. In Texas, efforts exist at the University of Houston Law Center, Texas Tech and The University of Texas at Austin’s Law School.
The Texas Center for Actual Innocence, a nonprofit organization funded by private sources, is a unique hybrid model of how a project can be affordable for public law schools. Graves, Dougherty, Hearon & Moody in Austin will provide office and administrative support when clinic cases are litigated, while Law faculty assistant Debbie Steed maintains the clinic’s docket and provides secretarial services. The center’s founders do not receive salaries for supervising the clinic. Allison and Dawson do it in addition to their normal teaching responsibilities because they are passionate about the subject—something that students notice immediately.
“Their passion for the subject was clear to me in class and is one of the things that motivated me to do the work,” said third-year Kate Welbes, a former clinic student.
The clinic, open to second- and third-year law students, meets once a week to study topics such as the law of exoneration upon proof of actual innocence or the science and law of DNA testing. Students also spend time screening letters from Texas inmates—10 every two weeks—with an eye to eliminating cases with no claim of actual innocence.
Professor William P. Allison was successful in using DNA testing and corroborating evidence to prove the innocence of two inmates in 2000 and 2001.
If an inmate isn’t making an innocence claim, the student will draft a reply letter explaining why the center can’t help the inmate. However, students do refer inmates to any resource that may help with their non-innocence legal problems. The clinic will also refer actual innocence claims from non-Texas inmates to other innocence projects. When a claim of innocence is made, students search appellate opinions and news articles for information that might refute the inmate’s claim. If it is not refuted, then a 15-page questionnaire is sent to the inmate asking for details, and the answers provided help the student and supervising attorneys decide whether to conduct a field investigation. Students give class presentations on cases that have merit.
In the clinic, students are taught to pay close attention to the facts of the case, and they are cautioned to be objective when deciding the truth of an inmate’s claim.
“You don’t want to be overly cynical or overly naïve,” Dawson said.
Students are also reminded to maintain the confidentiality of the cases and communications with inmates because both are covered by the attorney-client privilege. For this reason, students and supervisors don’t discuss cases outside the clinic, including the current 10 to 15 cases that have been identified as warranting further investigation.
“Think of this as a law firm,” Sheppard tells students. “Bill, Bob and I are the partners, and you are associates in the firm. You’re doing what real lawyers do—working on real cases with real people. If you devote the time to it, you’ll find this work is more interesting than sitting through one more class reading about cases.”
Former clinic student Debra Innocenti, ’04, agrees.
“It’s a meticulous process, but we learn a lot about what’s not found in the casebooks,” she says. “We start with handwritten inmate letters asking for everything from help with civil rights claims, to requests for transfers, to pleas for free legal help, to the heart-wrenching claims of innocence. We read between the lines of everything—the letters, the records and the appellate opinions—to find the gold in the ore. And the process is not just about crafting legal arguments. It includes the delicate task of persuading police officers and prosecutors to side with you in searching for the truth.”
The process can at times be frustrating.
“Believing someone is actually innocent and proving it are two different things,” Dawson said.
The process can require hundreds of hours of investigative work, and many of the cases don’t involve biological evidence, so DNA testing isn’t an option. There’s also a high burden placed on the defendant to show his or her actual innocence.
“Texas law requires that the defendant prove by clear and convincing new evidence that he is actually innocent,” Dawson said. “The law of actual innocence starts with a presumption that a conviction is final and should remain final unless there is a strong showing that the inmate was not involved in the criminal episode.”
Attorney David Sheppard’s hope for the clinic is that it will serve as a resource for anyone who has ever been convicted of a crime he or she didn’t commit.
The clinic uses the term “actual innocence” to mean that the defendant is able to prove that he or she did not engage in the conduct charged and that the conviction was the result of mistaken identification or that nobody committed the offense of which the defendant was convicted. Often the latter includes sexual assault cases involving children. Sheppard emphasizes that “actual innocence” is not the same as a wrongful conviction caused by a procedural mistake.
“Deductively learning this distinction from the letters, documents, investigation and class discussion is part of the teaching,” Allison said. “It’s a longer, more rigorous way of learning, but it is the way real lawyers learn.”
“It’s an important distinction because there are lots of cases that merit a reversal or retrial for these reasons,” Sheppard said. “But that’s not what we’re looking for. When we go into court we want to prove our client didn’t commit the crime.”
That’s not an easy job, but it becomes easier when the cause is rewarding, said Preston Findlay, a clinic student who aspires to be a public defender.
“I can’t think of anything more rewarding than giving an innocent prisoner his or her life back,” he said.
While freeing an innocent person from prison is the ultimate reward, the publicity generated by an exoneration case also has the potential to bring about changes in the criminal justice system.
“When it hits, the news is all over,” Allison said, noting that the Ochoa case he worked on was covered worldwide in the press. “The cases that result in exoneration are so startling that they tear at people’s hearts. It is the unthinkable.”
Sheppard said his hope for the clinic is that it will serve as a resource for anyone who has ever been convicted of a crime he or she didn’t commit.
“My hope for the students is that they leave the class with an understanding of how our legal system actually functions and how innocent people can be convicted despite all the procedural protections built into the system,” he said.
The clinic instructors can’t promise their students that they will exonerate an inmate during their law school careers. But Allison, Dawson and Sheppard do guarantee that the more cases the clinic investigates, the closer they come to that goal. And they are certain that during this process students will learn how to analyze and investigate not just criminal cases but any case.
Remaining ever hopeful, Dawson added, “And if we manage to spring somebody—that will be glorious and we will celebrate.”
Laura Castro Trognitz
Office of Public Affairs/School of Law
Photos of professors Dawson and Allison: Wyatt McSpadden
Photo of David Sheppard: Sherre Paris