Aug 03 2023
Using DNA to Help Exonerate the Innocent
With the rate of wrongful convictions being estimated between 2% and 6%, there are thousands of innocent people currently incarcerated in the United States. Over the years, multiple Innocence Project organizations have been founded to help exonerate the innocent, provide legal counsel, and to advocate for needed reforms within the justice system.
Mike Ware is the Executive Director and co- founder of the Innocence Project of Texas. IPTX is dedicated to correcting past injustices, preventing future wrongful convictions, and giving hope to people who feel that they are out of options. IPTX has grown to be one of the leading innocence organizations since its inception in 2006, having exonerated or freed 29 people.
In this interview, Mike shares the impetus for the creation of the nation’s first Convictions Integrity Unit in Dallas and what it was like working within the unit, the steps involved in re-examining a closed case, what could lead to a wrongful conviction, and the role that DNA plays in the process.
Transcript:
Laura: Thank you for tuning in to our annual video series from the International Symposium on Human Identification. Today we are very honored to be speaking with Mike Ware. Mike, why don’t you tell us a little bit about yourself before we get started?
Mike: Well thank you for having me. So, I’m a lawyer. Let’s get that out of the way. I graduated from law school in Houston in 1983. My wife and I, and our then two kids (now we have three), moved to Ft. Worth, which is where I was raised, and I clerked for a federal district judge for a year and then I opened up my own law practice in 1984 doing mostly criminal defense, but not exclusively. Then, jumping forward in 2006, a law school buddy of mine and I co-founded the Innocence Project of Texas, a 501c3 non-profit.
Laura: Let’s talk about that. Why did you co-found it and what is it’s mission?
Mike: Well, I became really interested innocence work. When I first started practicing, no one was innocent, in the general perception. If you had a client that you believed was innocent, you didn’t try to pitch it that way with the DA’s office if you were trying to work something out, because they immediately thought you were either naive or a bullshitter, because nobody’s innocent.
Then Barry Scheck and the National Innocence Project started their DNA and post-conviction work and these sort of astounding exonerations with incredible stories started coming out. I got really interested in that.
We had some meetings with the National Innocence Project and we ended up starting our own in Texas.
Laura: Very interesting. How does this relate? I believe when you were in Dallas County, you were working on some conviction integrity. Did that lead to this?
Mike: No, it all sort of happened simultaneously. In the fall of 2006, Craig Watkins got elected as the DA in Dallas County. And Dallas County is just to the east of Tarrant County, which is where I primarily was practicing at the time, but I had cases all over the state, including Dallas County. At that time, Dallas County, at least among defense lawyers in Tarrant County and other places, really had a bad reputation. In our mind, we were treated much more poorly over there than we were in Tarrant County. Tarrant County always had an open file policy. It wasn’t completely open, but at least they called it an open file policy for discovery. Dallas County didn’t. If you asked for discovery in Dallas County so that you could get ready for trial or ready to advise your client, they might just tell you, “Go talk to your client. He or she was there. They know what happened. That’s your discovery.”
So, when Craig got elected, you know, the first African American ever to be elected in Dallas County (or anywhere in Texas for that matter), and as an outsider (he was not someone who had ever actually been a prosecutor in the Dallas County DA’s office), he ran against the de facto incumbent who had been the previous DA’s first assistant and won. So, first off, in Tarrant County, we were kind of bemused by it, because there was this perceived panic in the DA’s office that someone from the outside was coming in and was going to expose all the wrongs that had been committed over the last 40 years there. Or something along those lines. But then, he asked a real good friend of mine to be his first assistant, and she was a defense attorney at the time. She had been a top felony prosecutor at the Tarrant County DA’s office. She had run for DA in Tarrant County and had lost to the incumbent twice. And she’d been a federal prosecutor, so she had been a real good, wise choice on his part to pick to be his first assistant. She knew the politics. She knew how to try a case. She knew how to run HR. Generally, particularly in the larger urban areas, the elected DA is the politician. He or she gives speeches to the rotary club. To the Chamber of Commerce or whatever and campaigns for re-election.
They call them, in different offices, first assistant, or whatever, it’s the one who actually runs the office. In this office, it was Terri in this position. So her idea, and she started it in 2007. Actually, she and I tried a case together in 2007 and she went over there right after we had finished trying that case. She had the idea to start what she called a Conviction Integrity Unit.
I’d never heard that term before. I don’t think it’d ever been used before, but there certainly hadn’t been one before, and her idea was to look at questionable convictions and do it from within the office, which is a much more effective way to identify and ferret out wrongful convictions. Innocent people who had been wrongfully convicted.
Up to that point, in 2001, Texas passed one of the first, if not the first post-conviction DNA testing statutes which allowed inmates, if they could meet the criteria as set out in the statute, access to biological evidence (to DNA tests) to prove their innocence. Up until that point, they had no right to do that. And of course, prosecutors had the right to contest it, and many prosecutors did, because they didn’t want them to test it. If they can prevent them from test it, they could stop short a potentially embarrassing exoneration. I mean, that’s my take on why they wouldn’t like them testing. Otherwise, why not let them test? It’s either going to confirm their guilt or prove their innocence. I mean, doesn’t everybody want to know?
Anyway, Dallas County started to have a string of DNA exonerations leading up to Craig’s election, and understand, these were inmates who applied to have post-conviction DNA testing, the DA’s office had fought them having testing (successfully in a lot of cases), so at least at that point, we thought we’d never know. But these were the ones that somehow won. Sometimes they had to go all the way up to the Court of Criminal Appeals to win, and they’d come back exonerated.
So, her thinking, and it made sense, was if these guys (and everyone of them was a tremendous story – it was tragic and sort of spectacular all at the same time). If there’s this many exonerees with the Dallas DA’s Office fully resisting (most of the time successfully) to them even getting a test, just think how many more there must be out there who’d never even got a shot at it. Or, maybe think of all the cases where there wasn’t any DNA.
So, when she offered me the position and wanted me to start the Conviction Integrity Unit, we had to go through the county commissioners. There was a lot of drama there. It was a 3-2 vote. Two of the commissioners were adamantly against it. They were like, “this is not your job. The DA’s Office’s job is to lock everyone up or put them on parole. Your job is not to exonerate innocent people.” So, there was that discussion. You know, “Nobody’s ever done this before. What are y’all doing? This is crazy. Y’all don’t know what you’re doing. You’re all going to mess up terribly. Or worse.”
But it got through on sort of a one year make good and they allotted the money for it. It was me and another attorney working under me and then a fulltime investigator who was a law enforcement office and then a paralegal. So our first task was to go back and look at the old database for requests for DNA testing and see who had asked for testing, but had been denied testing, because the office was opposing it and the judges almost always go along with what the DAs want and see if any of those guys or women, whichever the case may be. I think it’s almost always guys. But, which ones should have really gotten testing? In that, there’s DNA to test and it will either prove their innocent or prove their guilty, so what’s the worst that can happen, you know?
So, we started doing that and we started contacting their attorneys and getting tests by agreement and started getting exonerations that way. People who had been denied a test, we gave them a test and it proved their innocence. In some of those cases, I’m thinking of the Patrick Waller case in particular. Patrick Waller was the very first inmate to apply for DNA testing under the new 2001 statute, and it’d been denied. He was denied because this was the argument: the crime involved a sexual assault of a woman, but the perpetrator had stolen her car also. So, there was DNA to test, but it was tested under a much more primitive way, and supposedly it identified him as part of the 13% of the African American population that had this particular blood type, but he was tried for robbery and not sexual assault, so they said it didn’t matter whether he sexually assaulted her or not. Well that’s crazy, but the judge bought it and it was upheld on appeal. So, we said let’s go ahead and test this. I mean, that’s like saying, “fingerprints don’t matter, because they weren’t convicted on having fingerprints.” And so it wasn’t him. We had the Texas Department of Safety Law Enforcement Lab test it and they got a clear male profile through DNA testing and it wasn’t him. They put it into the national database. They identified the actual perpetrator who was in the national database and who had just paroled out on another violent offence. So we were able to go interview him at his parole officer’s office. We caught him when he had just paroled. And on audio tape, he eventually confessed to it and there was actually a second actor in this, and he told us who his co-defendant was, who we found and subpoenaed to the Grand Jury and he admitted to everything in front of the Grand Jury. We had to give him immunity, which really didn’t matter, because the statute of limitations had run on both of them by that time, because the earlier administration had not pursued it. They didn’t really care who did it. They had a conviction and that’s all they wanted. Had they pursued it when Patrick first asked for a DNA test, they could have identified these guys in time to prosecute them without running afoul of the statute of limitations.
Laura: That’s an excellent example of how this works. Looking from the outside, it seems logical, although difficult, to have a Conviction Integrity Unit inside as well as people from outside who are looking at it, it just makes sense to expose those cases, but I can see why you would get quite a bit of pushback from people within the office. Are there other units like that now that you’ve begun this in Texas?
Mike: Yes, there are. By the way, just as a footnote to the Patrick Waller story, when we identified these two guys, some of the original prosecutors started spreading a rumor that actually maybe there were three people involved. Anyway, that aside, I mean that’s the kind of pushback we’re getting.
So, yeah, I mean in the four years I was there, I think we exonerated 25 men (they were all men). And there were some that we started (and it can be a lengthy process) that finished up after we left. It got enough publicity, really internationally, I remember there was a write-up about what we were doing in a Russian newspaper, but all over, because it was such… Who ever thought of this? Mostly DA’s run on pounding their chest and how tough they are on crime, and of course, we like to think that we’re just as tough on crime, we just want to get the right guys. Locking up the wrong guys is not being tough on crime. District Attorneys all over Texas were taking heat. I think they were sort of envious of all the political favor this was generating on Craig’s part. And who knew, because everybody was predicting dire things. This was going to be the worst thing he ever did. He’ll never get re-elected and it turned out just the opposite. So Craig kind of became a rockstar.
Laura: I can see how it was a big risk, but in other industry, you usually do have some form of internal audit, accountability, so it’s something that seems to make sense.
Mike: So, there were DAs all over the country that wanted to be rockstars to or be a part of this, and they all had, I think different ideas on how this should work, but to answer your question, yes they’re all over the country now and all over the state. They all operate differently depending on who’s in charge and what the culture of the office is.
Laura: Having gone through this, do you have any words of advice for those who want to re-examine cases or want to put in a unit like this?
Mike: Sure. Number one, the unit and whoever’s the head of the unit, shouldn’t have to answer to anybody except the DA or maybe the First Assistant. They shouldn’t have to answer to the Head of Appellate or whatever. They should be able to operate freely. Preferably, it should be someone from outside of the office and not a career prosecutor. And look at all cases. I know there are some offices who say, “We don’t review pleas. If they pled guilty, a card laid is a card played and we’re done with it. So, we’re not going to review those.” Well, if you look at the National Registry of Exonerations, an astounding percentage of those exonerees pled guilty and anybody who does this work knows that innocent defendants plead guilty. I wouldn’t say all the time, but I wouldn’t say it’s unusual.
Laura: I would imagine to receive a lighter sentence if they feel there’s no way they’re going to get justice.
Mike: Well sure, they don’t feel like they have any confidence in their attorney, either because they were court appointed and they didn’t chose their attorney or they’ve just seen too many people who they were locked up with go down and get sentenced for life or whatever. If they are offered a lesser sentence or a lesser charge or something, then it’s not unusual for their own attorney to pressure them into taking it. Even if they insist on their innocence.
Laura: Let’s talk more about what you’re doing now. How does the Innocence Project of Texas decide which cases to re-examine and where are you in the process?
Mike: We receive, I used to say 100 letters a month. Maybe it’s not quite that many. Maybe some months it’s more. But we receive a lot of letters from inmates, from families of inmates and friends of inmates or somebody who knows somebody who knows somebody, and so we have a process by which we document all that and we have somebody who looks at them initially and decides whether or not this is someone who is asking for assistance we provide. Sometimes they’re not. Sometimes they’re complaining about what unit their in. They want to be moved. Sometimes they want help with their divorce. Sometimes there are other legal problems that we don’t handle. We’re not a all-purpose legal services agency. We try to steer them in the right direction, but someone makes an initial determination as to whether this is something that we deal with and then it goes through some vetting steps, but then, typically, it will go to a group of students. We have the Innocence Clinic at the Texas A&M School of Law which is there in Ft. Worth and then the Texas Tech Law School. So, our Deputy Director, Allison Clayton runs the clinic at the Texas Tech Law School. Prior to that, we have someone who gathers all of the relevant documents, so that somebody can look at it and make some kind of judgement. That’s a very time-consuming process and can be very costly. We’ve got to get the entire trial transcript, for example, and hunt that down. Maybe the trial was in 1992, so we have to hunt that down and pay for it, etc., before we can even make an informed determination before it goes to the next step. Get all of the investigative reports. Get everything that we can. Then, we assign them to students and we discuss them in class. The students review that. From there, we start weeding out what cases we need to close for whatever reason, what cases should go onto the next step, which cases should get assigned to an attorney and go from there.
Laura: How long does this process take from start to finish typically?
Mike: There are two cases that come to mind. The San Antonio Four case, I picked up right after I left the DA’s Office in 2011 and they were finally exonerated in 2016. That’s considered to be fairly quick. Lydell Grant, that I’m going to talk about some tomorrow, I guess we picked that up in 2018 and he was finally exonerated in 2021, so that was fairly quickly. I think, if you talk to people that have done this a long time, they’ll tell you that it’s not unusual to take 10 years or more.
Laura: That’s an enormous amount of time. I’m not sure that even the general public realizes this.
Mike: There’s so much resistance to it. Once someone is convicted, all the procedures, all of the laws, everything is stacked against you. In Texas, we have to prove, by clear and convincing evidence, with new evidence (it can’t be evidence that was known at the time of trial or could have been known at the time of trial even if they didn’t know about it – well if you’d been diligent, you would have known about this. It proves that you were innocent, but it could have proved you were innocent at trial. It’s too late now). So, that’s a pretty heavy burden and there’s lots of procedural hurdles. For example, often, what happens that we run into and is very frustrating, although I understand why it happens, is an innocent person goes in that’s lost in trial (and sometimes it’s a shock because they believe in the system), and how could they present so much evidence to convict me if I didn’t do it? How can there even be evidence to convict me if I didn’t do it? So, then they get a direct appeal and they lose that. And then, they’re no longer entitled to a lawyer, so then they file their own pro se writ explaining their own arguments as best they can and the Court of Criminal Appeals will look at this and say, “I’m not reading that. Denied.” And then they’ve had their one bite of the apple. Generally, you’re only allowed one writ, so after that, they come to us and say, “Here’s what I’ve got and it’s a great case.” This person’s innocent and we can prove it, but they’ve already filed a writ, so we’re barred. We can’t file another one unless we’re able to overcome some very difficult procedural hurdles. It’s infuriating, but that’s what the law is.
Laura: How often does that happen where they’ve already filed a writ and you have to meet that and how often do you get lucky and that hasn’t happened, but it is a good case for you to take?
Mike: Most of the cases we get, they’ve already tried to file their own writ. So, there are exceptions. It’s just an extra hurdle, and they’re not easy to meet, and it’s an extra hurdle that we have to overcome just to have the merits of the case heard, and that happens with some frequency.
Laura: So, I think sometimes the perceptions of the public, because of the TV shows that are out there, and the series everyone watches, someone says, “I’m innocent”, someone comes to help them, there’s a DNA test, and boom, they’re exonerated. Let’s talk about the technologies and how the changing technologies has assisted in the work that you do.
Mike: One thing, what time has done is exposed all of the BS pseudo-science that people got convicted on and a lot of the mistaken testimony, in some cases out and out false testimony, that went into getting people convicted by so-called experts. So, we were able to get, in 2013, I said we do some policy work, we were able to get a statute passed that is called the Junk Science Statute and it was amended in 2015 to fix some holes in it that the cases were able to find in order to pour our clients out in technicalities, so we had to amend it in 2015 to shore those up. And what is says is if someone was convicted based on what we now know is bad science (it’s a little bit more particular than that, but that’s basically what it says) but for that testimony by the so-called expert, they would not have been convicted. You know, there’s some reasonable likelihood they would not have been convicted, they are entitled to a new trial. Or there’s an advance in science that can be applied to their case that was not able to be applied back then. So, either bad science that can now be disproved, or new science, that can be applied to get them a new trial.
Laura: Are there patterns that you’ve seen in all the cases that you’ve been working?
Mike: Yes, and of course, there’s what’s called the National Registry of Exonerations. That’s full of information that’s been collected, categorized, etc., that talks about that. It’s run by academics and others that are experienced in the field, and you can find out what the answer is based on the thousands of exonerations that they’ve been able to document and collect data on, but my own personal experience? The first thing that comes to mind is mistaken eyewitness identification, which is in many cases, the product of police misconduct. A lot of police misconduct is disguised as mistaken eyewitness identification. What happens is there’s eyewitnesses and they can’t describe the person, so the police find a suspect and maybe it’s the person who did it and maybe it’s not (we’ve found plenty of cases where it’s not), put them in a photo spread, and then basically tell the witness who to pick and that can be very overt or it can be very subtle.
The problem is that the detective who knows who the suspect is is administering the photo spread, and they can even congratulate them for picking the right person and reinforce that they picked the right person. So, what we did, once again, is we went to the legislature and made our case and got a law passed that the police are supposed to administer photo spreads in a double-blind manner so that the person administering the photo spread does not know who the suspect is. And it’s made a big difference. We saw so many cases in Dallas and otherwise, where we’re like, “How did this guy even become a defendant? How did he become a suspect?” I understand he got put into a photo spread and got picked out, but how did he get in the photo spread? I understand once he gets picked out, he’s gonna be convicted no matter what, because that person is now going to come to court and is going to say, “That’s the man who robbed me or sexually assaulted me or whatever.” And the jury’s going to believe it and that person is not going to walk out of the courtroom. And of course, DNA tests started exposing that, and a lot of times when we identify the actual perpetrator, they didn’t look anything like the person that was mistakenly identified. So, you go, how does that happen? And we interviewed enough witnesses to know that with some frequency, they were told who to pick.
Laura: So it’s really remarkable that DNA has allowed you to not only exonerate these people, but to identify procedural errors that can hopefully be corrected and change the process. That’s amazing. You mentioned a case earlier. Is there one particular case that stands out? I’m sure there are a lot of cases that stick with you, but is there one in particular that you just can’t forget?
Mike: Whatever the last case exonerated was. Kind of like my favorite movie – whatever the last one that I saw was. I’m not trying to be flippant about that.
Laura: Oh, I understand. They all matter that much is what you’re saying, basically.
Mike: Yeah, I could just go down the line. Every one of them truly is an amazing story. And what it causes one to realize is that for this person to get exonerated, this had to happen, this had to happen, this had to happen, this had to happen. What are the chances of any of those happening, let alone each of them happening in the same case? The logical inference from that is there’s a whole lot of innocent people in prison who haven’t been identified, or have been identified, but have never been able to be successfully exonerated. So, for everybody who’s exonerated, I would say there’s say there are 10 or 15 who’ve never been identified or exonerated.
Laura: Wow, that’s a remarkable number. Shocking. There’s a lot of work to do and it take a lot of time. Let’s talk about the students a little bit to circle back. It’s really interesting and wonderful that you’re working with students. What’s that like?
Mike: I really enjoy it. They’re really smart. Some of them think they’re cynical, but they’re not cynical yet. What’s interesting is when I present them with the way things work, they’re like, “What? The United States Supreme Court does not recognize actual innocence as a grounds for relief?” Which is true. How can that be? What? Here’s a case where they proved this, this, and this and the prosecutor still wouldn’t agree that they were innocent and made up these alternative theories? What’s wrong with these people? There’s a law professor and author who’s written on the subject, I think a book or law review on innocence deniers, where she catalogues some instances around the country where someone has proven their innocent beyond all doubt, but yet the prosecutors will come up with some cockamamie theory about how they could still be guilty. Kind of like how I referenced a while ago on the Patrick Waller case. Well maybe there were three people and not just two. That kind of thing. Some of them were much more far-flung than that. Some of them I’m still trying to come up with an answer for them. How can they do that? How can they say that? And the only one I’ve been able to come up with and is the most honest answer that I’ve been able to come up with is they’re just assholes. These judges, these prosecutors that won’t give relief where it so obviously should be given or who come up with these cockamamie theories even though this, this, and this, they’re still guilty because of this new theory. They’re just assholes. I wish I could come up with a more academic answer that than that.
Laura: I don’t know. Sometimes we see it again and again in different places that confirmation bias. Once you’ve said something, no one wants to change their minds. It’s difficult to overcome.
Mike: They cannot hold two different ideas in their heads at one time. That cognitive dissonance is just too much for them.
Laura: What made it so important to bring this to ISHI and present for us this year?
Mike: I’m so glad to know that ISHI exists. This conference has been great. I didn’t even know it existed, but I guess a DNA expert that we use as a consultant as an expert who has helped me out on so many cases, including the one I’m going to talk about tomorrow, Angie Ambers, connected us. I guess she thought that I would enjoy doing this and maybe it would be a good fit, and so I said, “Sure, I’ll do it.” So here I am.
Laura: We are so glad to have you here. We really appreciate it. The experience has been good for you so far?
Mike: Yeah, it’s been great. I want to send somebody from our organization, our non-profit here, every year, I think. Now that I’ve seen what goes on here, there’s so much that I’ve sat and listened to that I go, this is fascinating. I don’t understand it, but it’s fascinating and I need to know it, because my work involves so much of it.
Laura: And I think that’s what we see is that it’s where academia meets law enforcement meets DNA. Some scientists and all the technical specialists. Thank you so much for being here Mike.
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