Santa Clara University

Closing Arguments

Meaningful Reform Can Help Prevent Wrongful Convictions

By Gerald F. Uelmen, Professor, Santa Clara School of Law

When John Van de Kamp called me in January 2006 and asked if I would be willing to serve as executive director for the new California Commission on the Fair Administration of Justice, I had two reactions. First, was this an invitation to a wake? A commission to make recommendations to the legislature sounded like an exercise in futility. The political posturing that surrounds law and order issues has made meaningful criminal justice reform in California impossible, and sent everyone to the trenches to fight over initiative measures. Second, I thought, I’m enjoying law school teaching too much. To take this on, I would have to be cloned.

Gerald Uelmen is a professor at Santa Clara Law and also serves as executive director of the California Commission on the Fair Administration of Justice.

Both of my concerns were quickly alleviated. John assured me that the commission members would represent a balanced spectrum of those with experience at the highest levels of every component of the criminal justice system, and rather than just issue a final report and fade away into the sunset, the commission would issue its recommendations one at a time and work to implement them while it was still in operation. And the office for the commission could be set up across the street from my law school office; to commute from one job to the other, all I would have to do is cross the street. I would not have to be cloned after all.

Let me give you a quick overview of the commission’s work so far, and give you some idea of where we are going. Hopefully, you might be inspired to visit our Web site to learn more: www.ccfaj.org. There are currently twenty members of the commission, including the State Attorney General, three county district attorneys, two county public defenders, the directors of the State Public Defender’s Office and the California Habeas Corpus Resource Center, the L.A. police chief and the San Benito County sheriff, two professors, four lawyers in private practice, one judge, and one victims’ rights advocate. The commissioners come from every part of the state.

Identifying the causes of wrongful convictions was easy. Researchers at the University of Michigan had just compiled data on 340 exonerations of innocent people who were erroneously convicted of serious crimes from 1989 through 2003. Amazingly, 60 percent of them had been convicted of murder, and 36 percent had been convicted of rape. The explanation is obvious: these are the only crimes where DNA testing might be available to identify the perpetrator. Twenty-seven of the cases occurred here in California. When they examined what went wrong in these cases, they found there was a mistaken eyewitness identification in 80 percent of the cases. In 15 percent of the cases, the defendants confessed to crimes they had not committed. And in 97 of the cases, or 28 percent, there was perjury by a jailhouse snitch or another witness who stood to gain something from false testimony. In a disturbing number of cases, there was also false or erroneous forensic evidence, prosecutorial misconduct such as the withholding of exculpatory evidence, and defense lawyer incompetence. The commission is examining each of these seven recurring causes of wrongful convictions, one at a time. In addition, our charge includes an examination of the administration of the death penalty in California. We have contracted for some independent research projects to assist in our deliberations, and we anticipate concluding our deliberations and issuing a final report by December 31.

Thus far, the commission has issued three reports recommending action by the legislature. First, we recommended a state task force be assembled to compile mandatory guidelines for police conducting line-ups and photo arrays, to minimize the risks of wrongful identification. Second, we recommended a statutory requirement that custodial police interrogation be recorded, to minimize the risks of false confessions. And third, we recommended legislation to require corroboration of testimony by in-custody informants, also known as jailhouse snitches. The first two recommendations were promptly enacted by the legislature, and just as promptly vetoed by Governor Arnold Schwarzenegger, at the urging of law enforcement lobbyists. We learned that law enforcement participation on our commission does not guarantee law enforcement support for our recommendations. Both of these recommendations, along with our third, are being considered by the legislature again this session, and we are optimistic that they will receive a warmer reception from the governor this time around.

Criminal justice reform is not for the short-winded. The parade of innocent people released from our prisons after serving lengthy terms for crimes they did not commit, while the actual perpetrators remain at liberty to victimize others, suggests we still have work to do to restore complete confidence that our system of criminal justice is just, fair, and accurate. Nobody wins when we make a mistake that sends the wrong person to jail. The use of commissions such as the California Commission on the Fair Administration of Justice has been a catalyst for meaningful reform in many other states. I remain convinced that it can work in California.