justicescales-e1571929489211.jpg

‘We Must Dispel the Myth That We Always Get It Right’

This week, Patricia Cummings, a national leader in the innocence movement and the former supervisor of the Conviction Integrity and Special Investigations Unit at the Philadelphia District Attorney’s Office, takes the helm of the National Registry of Exonerations.

She becomes the Registry’s first executive director at an opportune moment. The Registry, an online database of more than 3,100 wrongful convictions, is approaching its 10-year anniversary since going online with its inaugural report in June 2012. Earlier this year, the Registry reported 161 exonerations in 2021, with a combined total loss of 1,849 years lost in prison.

By 2021, the Registry reported, the combined loss of years in prison due to wrongful convictions had topped 25,000 years.

The Registry is a joint research project of the University of California, Irvine Newkirk Center for Science & Society, University of Michigan Law School and Michigan State University College of Law.

Barbara O’Brien, Editor of the Registry and a professor at the Michigan State University College of Law, said Cummings’ selection comes at a time when “our work is more urgent than ever.”

Patricia Cummings

“Patricia Cummings is a true champion for the falsely convicted,” O’Brien said. “She has the breadth of experience, the track record of accomplishment, and the earned respect of her peers.

“There’s no one better to help us reach a wider audience and increase our impact.”

At a moment when some believe that criminal justice reform has stalled, while others believe it is picking up momentum, The Crime Reports Maurice Possley—who also serves as senior researcher for the Registry—sat down with Cummings to explore her vision of the Registry’s role as a provider of data for policy-makers, legislators, educators, and others.

The transcript of their conversation has been edited for length and clarity.

THE CRIME REPORT: You’ve had a very successful career as a private criminal defense attorney, and then as a prosecutor. How did you come to study law and how did that lead to becoming a prosecutor?

PATRICIA CUMMINGS: Although I am one of nine children, there are no lawyers in my family. Yet, I knew I wanted to be a lawyer by the time I was 12 years old. Beginning in junior high school, everything I did thereafter was to further that pursuit. Becoming a lawyer was synonymous with being a criminal trial lawyer — I really never considered anything else. And back in my day, over 30 years ago, in order to be a criminal trial lawyer in Texas, you first became a prosecutor. Although Texas is a big state, public defender offices were few and far between in the early 1990s.

TCR: As a prosecutor, your responsibility was to bring cases to justice. What did that mean to you when you started out as a prosecutor? And has that changed over the years?

CUMMINGS: My first assignment as a baby prosecutor was to prosecute juveniles accused of crimes. At that time, I was barely 26 years old — just past the point of what we now know is the maturation point of the adolescent brain. Although that assignment was not by choice, I credit it with teaching me so much about what justice is and what it should be as a prosecutor. That may seem strange because back then no one in the prosecutor’s office wanted to handle juvenile cases. Not only was it one of the lowest-paid positions in the office; it effectively meant you would not get to try cases because juvenile cases rarely went to trial.

I am not sure why—maybe it was my age and lack of indoctrination into the traditional prosecutorial culture—but I instinctively knew that succeeding in that role was not about winning cases. Simply put, I saw my role and ultimate success as being able to evaluate the evidence in every single case and then decide what benefits could be obtained from pursuing a fair prosecution.

Decades later, as I ended my latest chapter as a prosecutor in the Philadelphia District Attorney’s Office, my role remained the same. The only difference was my lens: Instead of looking forward to new cases, I looked backwards to see if others had properly evaluated the evidence and whether the prosecution resulted in a fair trial for the accused.

TCR: You were one of the lawyers representing Michael Morton, who was exonerated in 2011 of the murder of his wife—a crime committed by a different man who went on to kill another woman. Morton is perhaps one of the most famous of the 400 exonerees in Texas.

man smiling

Michael Morton

The prosecutor in that case hid evidence that could have prevented the second murder, and sent Morton to prison for 25 years for a crime he did not commit. How did that case affect you—as a defense attorney and as a former prosecutor?

CUMMINGS: The injustice that occurred in Michael’s case and the aftermath of uncovering that injustice affected me as a defense lawyer and former prosecutor, and as a human being, in so many different ways. Some have been obvious (change in career path) while others have been more personal and subtle (long-time relationships ended and new ones formed).

However, most often when I talk about Michael, my former client and now dear friend, I often use one of my favorite quotes (which has apparently been misattributed to Abraham Lincoln for a century) to describe my experience and lessons learned. “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

Prosecutors have tremendous power. Unfortunately, some prosecutors abuse that power and the resulting damage is widespread (as is evidenced by Michael’s case, the subsequent murder of Debra Jan Baker and the overall negative impact it had on the community).

Meanwhile, I have been fortunate to sit next to Michael as his circumstances and his character have given him the power to change the criminal legal system.

Most notably, that has been with the passage in Texas of the Michael Morton Act [in 2013]. He successfully led legislative efforts in Texas to level the playing field in criminal cases by mandating open file discovery and broadening and extending a prosecutor’s Brady obligations pre- and post-trial.

TCR: In 2015, you took on the position of the head of the conviction integrity unit in the Dallas County District Attorney’s Office. That’s the unit which several years earlier had set the tone and raised the bar for such units. Was it difficult to work on cases that had once been prosecuted by the office and to turn around and one day say that this case is a wrongful conviction?

CUMMINGS: As suggested by your question, at the time I was hired to run the Dallas CIU (Conviction Integrity Unit), that unit had become the national gold standard not only for using DNA to exonerate the innocent, but also for setting an example for what all prosecutors should strive to be: ministers of justice. Accordingly, I consider myself very lucky to have been chosen as just one of four people (two before me and one after me) who have led the Dallas unit. Serving in that capacity was a real honor.

One of the biggest surprises I faced when I took the job in Dallas was that, despite its national reputation, there was still a cultural battle going on within the office regarding the work of the unit. Oddly enough, the biggest battles I fought trying to get the work done were with colleagues in the office.

One fight that particularly stands out involved the wrongful conviction of Steven Mark Chaney who was found to be actually innocent by the Texas Court of Criminal Appeals in 2018. Although I did not understand it at the time, the stage for that fight had been set before I had even been hired to be the leader of the unit.

Some background here is helpful. When the former District Attorney Craig Watkins created the CIU, he made it autonomous in regard to other units in the office and he had the appellate and post-conviction prosecutors specifically report to the CIU. However, when Watkins was defeated and a new District Attorney was elected, the organizational structure of the office was changed. So, when I took over, the CIU no longer had any power or control over the appellate/post-conviction unit and was instead more like an “equal” to that unit on the organizational chart of the office.

man with mustache

Steven Mark Chaney

Seizing on that new organizational structure, appellate and post-conviction prosecutors suddenly had a say in CIU cases. And not surprisingly, they sought to defend the conviction under investigation. In Mr. Chaney’s case, behind closed doors, those same prosecutors defended the discredited bite-mark evidence used to convict Mr. Chaney, argued suppressed evidence of a search was not exculpatory and maintained that Mr. Chaney was not innocent. Fortunately, the position of the CIU prevailed and Mr. Chaney was exonerated after spending almost 28 years in prison. But the internal office fight was costly both in terms of CIU time and resources.

TCR: Let’s talk about some definitional terminology. What is a wrongful conviction and do all wrongful convictions result in a finding of actual innocence? How does this factor into the work of a conviction integrity unit?

CUMMINGS: Common sense tells us that when an innocent person is convicted, the conviction should always be considered wrongful. Seems like a simple concept. Except it isn’t. Laws regarding actual innocence and wrongful convictions are often complicated and vary from state to state, and federally. In fact, the United States Supreme Court has yet to recognize that convicting an innocent person during an otherwise fair trial, is a due process violation.

So to simplify an otherwise complicated subject — a wrongful conviction is a conviction that is subsequently overturned based on a judicial (or legal finding, such as a pardon) that the conviction was obtained as a result of a fundamentally unfair trial. To avoid confusion, people should differentiate between a wrongful conviction set aside on actual innocence grounds versus one set aside solely as a result of a violation of the accused’s right to due process.

In the former, think new DNA evidence that identifies the real perpetrator who happens to be someone other than the defendant versus in the latter, racial discrimination that occurs during jury selection. The bottom line is not all wrongful convictions involve people who are actually innocent.

Aside from the obvious difference between innocence and guilt, the distinction between a wrongful conviction where there is new evidence of actual innocence as opposed to a wrongful conviction based solely on a due process violation is a hugely significant distinction to make for a variety of reasons ranging from whether a CIU will review a particular case to the right to receive state compensation. Many CIUs (and even Innocence Projects) will only review cases of wrongful conviction with credible claims of actual innocence. Other CIUs don’t limit their review to “innocence” cases — choosing instead to have a broader review which includes the integrity and fairness of trials and sentencing in general.

The Philadelphia CIU is a great example of a unit with a broad review mandate. Since January 2018, the unit has worked on approximately 40 cases where convictions were overturned based on (1) actual innocence; (2) a trial that was patently unfair, but in a way that did not substantially change the evidence, meaning that a new guilty plea was later entered or the charges are still pending retrial; or (3) government misconduct where innocence is unclear, yet the state of the evidence is such that the case can no longer be legally and/or ethically prosecuted.

TCR: What was the most significant case you handled as chief of the Dallas conviction integrity unit? And why?

CUMMINGS: Such a difficult question! I am stuck on what you mean by significant. Significant personally, legally, culturally?

To help answer this question, I just went back and re-read the Registry’s exoneration summary for Quintin Alonzo. The summary states in part:

On October 13, 2015, while on death row, [Licho] Escamilla met with attorneys and investigators with the Conviction Integrity Unit of the District Attorney’s Office. He said, “Somebody’s in prison for something he hasn’t done.”

As the full summary describes, Escamilla went on to confess to the crimes Alonzo was serving multiple consecutive sentences for, including a life sentence. Although I did not finish this case during my tenure in Dallas, it is the most significant case I handled because, but for the death row interview of Escamilla the day before he was executed, evidence of Alonzo’s innocence and unfair trial may have been buried forever along with Escamilla.

Prior to the creation of CIUs, I have no doubt that a prosecutor interviewing a death row inmate hours before his execution to investigate an innocence claim of another defendant prosecuted by the same office would never have happened.

TCR: In 2018, you became the chief of the conviction integrity unit in Philadelphia working for Larry Krasner, who was a defense lawyer elected on a platform of reform. How was that job different from your job in Dallas?

CUMMINGS: The differences between the Dallas and Philadelphia jobs can largely be summed up in three categories.

    1. Scale — the number of Philadelphia cases to review and the amount of government misconduct in those cases far exceeded what I saw in Dallas. And the number of cases and the amount of misconduct in Dallas was significantly higher than many other jurisdictions.
    2. Support — although the Dallas District Attorney supported the work of the Unit, Krasner not only supported the work but he prioritized it by giving it his attention, feedback and resources (at its peak in June 2021, the CIU in Philadelphia had more assigned prosecutors than any other CIU in the country).
    3. Judicial Pushback —probably due in part to the fact that the Philadelphia judiciary had no real experience with conviction integrity work in the prosecutor’s office, judicial pushback was often stronger and more restrictive than the already narrow confines of the applicable statutory scheme governing post-conviction relief. Unlike my experience in Dallas, Philadelphia judges denied relief in cases where both the law and facts required it likely because they simply refused to accept change.

TCR: Now, a broad question. In your experiences as a prosecutor devoted to righting wrongful convictions, what have you learned about the criminal justice system? What changes should we make?

CUMMINGS: I could probably write an entire book about this topic — in some respects research has given us a roadmap to very simple solutions we could adopt to minimize the occurrence of wrongful convictions yet the idea of changing the criminal justice system too often gets bogged down in politics and passions.

In short, I have probably learned more about the fallibility of the criminal legal system in the last four years than I have learned during the last three decades. And because so much of what I have learned has called into question what I already thought I knew, I am keenly aware that there is more to learn. Consistent with that awareness, I believe the single most important change we must make is to create laws and rules that allow for adaptability.

Specifically, we must do what we can to dispel the myth that we always get it right. We must reject the notion that finality is more important than accuracy and reliability. We must also embrace science as a truth-seeking tool and do what we can to train and educate stakeholders to guard against basic human biases in our decision making.

TCR: You are embarking on yet another career path as the executive director of the National Registry of Exonerations. Can you tell us why you find it appealing to move on from a job of chief of conviction integrity? What do you see as your most important task ahead of you and how are you going to tackle it?

CUMMINGS: I have always believed that if a CIU leader is doing what they are supposed to do, they will necessarily have a shelf life. Staying true to that belief, after almost four years in Philadelphia, I knew my expiration date was close. However, I knew if I left Philadelphia, I could not walk away from this important work — the work of learning about our mistakes and doing what we can to prevent them from re-occurring.

Sometimes, the timing is right. My last day as the leader of the Philadelphia CIU was December 2, 2021 and just a few weeks later I learned the Registry was looking to hire its first Executive Director. Since the days of my work on the Michael Morton case, I felt like I sort of grew up in this field right alongside the Registry. All the while I knew the Registry’s work is not only critical to my understanding of the criminal legal system, it is critical to our nation’s understanding of the criminal legal system.

I believe one of the biggest challenges I face as Executive Director of the Registry is to figure out how to ensure the Registry is not taken for granted — sort of like how the public takes for granted that data and information collected by certain governmental bodies will always exist and be available.

No governmental body has ever tried to do what the Registry has done and is doing. Instead, three academic institutions and a nonprofit organization manage and run the Registry to provide comprehensive information on exonerations of innocent people in order to prevent future convictions of the innocent by learning from past errors. With the Registry staff growing three-fold in its first decade of existence and exonerations occurring almost daily, I have to inform and educate the public about the amount of resources needed to simply sustain the Registry and I have to figure out how best to obtain those needed resources.

Advocates for criminal justice reform get a lot of attention. With that attention comes financial support. Yet, much of the wrongful conviction reforms realized in the last decade do not stem from advocacy alone. The success of those reforms should also be credited to certain judges and policy makers who relied on Registry data and information when making their decisions and enacting laws. However, there are still far too many decision makers who are unaware of the Registry and its work.

So, in addition to the task of ensuring sustainability, I also want to make certain all of the information derived from the Registry’s work — the human stories, the legal mistakes, and the collected data —is not just readily available as a resource to educate and effectuate change; I want to make sure it actually gets used for its intended purpose.

In sum, even though some of us view the Registry as a permanent fixture of the criminal legal system, I cannot assume it will continue to thrive without academic and financial support as well as the support of concerned citizens across the country. Better yet, no one committed to having a criminal legal system that gets it right should make that assumption.

TCR: Do you think there is still the same appetite for criminal justice reform that there was a few years back? Why or why not?

CUMMINGS: Your question sounds and feels like a political question and as such, I will give you a political answer. It depends on whom you ask, when you ask them and what jurisdiction they are in.

I recently watched members of the Senate Judiciary Committee grill a nominee for a federal district court bench about whether innocence work she did over the course of two decades made us less safe. It was a sad day. Yet, it reminded me how important communication is to not only to effect change but to understand why we need it.

We can’t let reason, science and the truth get drowned out by fear and loud voices.

Maurice Possley

I sincerely hope the kind of questions I heard during that hearing were a one-off because I have always believed, and want to continue to believe, that convicting the right person is a non-partisan value we all hold dearly. This is a value that we must work together on to restore when we have failed and to protect against when we better understand how those failures occurred.

Whether you call it criminal justice reform or smart on crime — we should all have an appetite for getting it right.

Maurice Possley is a Pulitzer Prize winning journalist formerly with the Chicago Tribune. A contributor to The Crime Report, he is the senior researcher for the National Registry of Exonerations and also serves a journalism training coordinator for the John Jay Center on Media, Crime and Justice.

Tags: No tags

Comments are closed.